Team G Docket No. 17-795

In the Supreme Court of the United States ______________

JAMES T. OLIVER,

PETITIONER,

v.

THE STATE OF CLINTONIA, RESPONDENT.

______________

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF CLINTONIA _________________

BRIEF FOR PETITIONER

Counsel for the Petitioner

September 15, 2017

i

QUESTIONS PRESENTED

1. Whether the Supreme Court of Clintonia correctly found that the State’s licensing

requirement for intrastate casket sellers passed rational basis review even though the facts

relied upon during the statute’s enactment have drastically changed?

2. Did Private Rookie Jones’s viewing of ten photographs exceed Bruce Walker’s initial

private search and violate James T. Oliver’s Fourth Amendment rights?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED………………………………………………………………….…...i TABLE OF CONTENTS……………………………………………………………………...ii, iii TABLE OF AUTHORITIES……………………………………………………………….….iv, v OPINIONS BELOW…………………………………………………………………………......vi CONSTITUTIONAL PROVISIONS……………………………………………………………vii STATUTORY PROVISIONS…………………………………………………………………...vii JURISDICTION………………………………………………………………………………...viii STATEMENT OF THE CASE………………………………………………………………....1-3 SUMMARY OF THE ARGUMENT…………………………………………………………...4-7 ARGUMENT…………………………………………………………………………….……….7

I. WHILE APPLYING RATIONAL BASIS REVIEW, THE SUPREME COURT OF CLINTONIA ERRED IN UTILIZING THE MURILLO DOCTRINE WHICH DOES NOT ACCOUNT FOR THE DOCTRINE OF CHANGED CIRCUMSTANCES………………………………………………………………7 A. Proper Rational Basis Review Requires Courts to Evaluate the Legitimacy of

the Government’s Interest in the Challenged Law Based on the Facts and Circumstances that Currently Exist……………………………………...……8

1. The Clintonia Supreme Court’s use of the Murillo exception were misguided……………………………….……………………………10

2. Based on a correct analysis that takes into account present facts, the FDEA’s licensing requirement and by extension § 18.942 has no rational relationship with Clintonia’s interests in consumer protection, health and public safety………………………………………….…..12

B. Proper Rational Basis Review Requires Courts to Evaluate the Legitimacy of

the Government’s Interest in the Challenged Law Based on the Facts and Circumstances that Currently Exist………….………………………………13

II. PRIVATE ROOKIE JONES’S SEARCH OF THE USB EXCEEDED THE

SCOPE OF BRUCE WALKER’S INITIAL SEARCH AND VIOLATED JAMES T. OLIVER’S FOURTH AMENDMENT RIGHTS…………………………….16

iii

A. With No Virtual Certainty Of What He Would Find, Private Jones Exceeded

The Scope Of The Initial Private Search And Therefore Conducted A Fourth Amendment Search…………………………………………………………..17

B. Storage Capacity And The Nature Of Electronic Devices Implicate Greater Privacy Concerns……………………………………...……………………..19

C. Private Rookie Jones’ Actions are Not Protected By the Good Faith

Exception………………………….…………………………………………21

CONCLUSION…………………………………………………………………………………..25

iv

TABLE OF AUTHORITIES

United States Supreme Court Cases

City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432 (1985) ____________________ 11

City of Philadelphia v. New Jersey, 437 U.S. 617 (1978) _____________________________ 13

Dandridge v. Williams, 397 U.S. 471 (1970) ________________________________________ 8

Davis v. United States, 564 U.S. 229 (2011) _______________________________________ 22

Energy Reserves Grp., Inc. v. Kansas Power & Light Co., 459 U.S. 400 (1983) ___________ 14

F.C.C. v. Beach Commc'ns, Inc., 508 U.S. 307 (1993) _______________________________ 11

Illinois v. Gates, 462 U.S. 213 (1983) ____________________________________________ 22

Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356 (1973) _________________________ 8

Riley v. California, 134 S. Ct. 2473 (2014) _____________________________________ 20, 25

U.S. v. Carolene Products, 304 U.S. 144 (1938) _____________________________ 5, 8, 10, 13

United States v. Jacobsen, 466 U.S. 109 (1984) __________________________________ passim

United States v. Jones, 565 U.S. 400 (2012) _______________________________________ 21

United States v. Jones, 565 U.S. 400 (2012) ________________________________________ 7

United States v. Peltier, 422 U.S. 531 (1975) _______________________________________ 23

Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292 (2016) __________________________ 9

Williamson v. Lee Optical Co., 348 U.S. 483 (1955) _______________________________ 8, 14

United States Courts of Appeals Cases

Burlington N. R. Co. v. Dep't of Pub. Serv. Regulation, 763 F.2d 1106 (9th Cir. 1985) ____ 8, 10

Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002) ___________________________________ 14

Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002) _________________________________ 8, 15

Dias v. City & Cty. of Denver, 567 F.3d 1169 (10th Cir. 2009) __________________________ 9

Murillo v. Bambrick, 681 F2d. 898 (3d Cir. 1982) ________________________________ 10, 11

v

Powers v. Harris, 379 F.3d 1208 (10th Cir. 2004) ___________________________________ 15

Sensational Smiles, LLC v. Mullen, 793 F.3d 281 (2d Cir. 2015) _______________________ 16

St. Joseph Abbey v. Castille, 712 F.3d 215 (5th Cir. 2013) ____________________________ 14

United States v. Ackerman, 831 F.3d 1292 (10th Cir. 2016) ___________________________ 21

United States v. Lichtenberger, 786 F.3d 478 (6th Cir. 2015) ____________________ 17, 18, 20

United States v. Moore, 644 F.3d 553 (7th Cir. 2011) ________________________________ 10

United States v. Tosti 733 F.3d 816 (9th Cir. 2013) __________________________________ 19

Statutes

Clint. Stat. § 18.942 ______________________________________________________ 4, 8, 12

Other Authorities

Gerald S. Kerska, Economic Protectionism and Occupational Licensing Reform, 101 Minn. L. Rev. 1703, 1705 (2017) _____________________________________________________ 13

vi

OPINIONS BELOW

The Transcript of Record sets forth the unofficial and unreported judgment of the Bill

County, Clintonia Court of Appeals for the Fifteenth Circuit, State of Clintonia v. James T.

Oliver, Docket No. 14-554 (15th Cir. 2015). R. 2–15.

The Transcript of Record sets forth the unofficial and unreported judgment of the

Supreme Court of Clintonia, State of Clintonia v. James T. Oliver, Docket No. SC-1353 (S.C.

2016). R. 18–23.

vii

CONSTITUTIONAL PROVISIONS U.S. Constitution, Amendment IV: 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. U.S. Constitution, Amendment XIV, § 1, in relevant part: [N]or shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

STATUTORY PROVISIONS

§ 18.942, Clint. Stat.

No resident of Clintonia may, without a proper license under the FDEA, sell a time- of-need casket for use in a funeral within the state of Clintonia. A violation of this section is a first-degree misdemeanor and punishable by up to one year in prison and a $1,000 fine. This section only applies to wholly intrastate transactions.

viii

STATEMENT OF JURISDICTION

The Supreme Court of Clintonia entered final judgment on this matter on October 29,

2016. Petitioner filed a petition for writ of certiorari, which this Honorable Court granted on June

17, 2017. This Court has jurisdiction to review this case under 28 U.S.C. § 1254 (2006), which

provides that "[c]ases in the courts of appeals may be reviewed by the Supreme Court by . . . writ

of certiorari granted upon the petition of any party to any civil or criminal case, before or after

rendition of judgment or decree.”

1

STATEMENT OF THE CASE

Factual Background

The creation of the FDEA

In 1932, a group of rich and powerful morticians in Clintonia extensively lobbied for a

law that would forbid anyone from engaging in an intrastate sale of a time of need casket without

being licensed as a funeral director. R. at 3. Succumbing to these demands, the Clintonia

legislature would pass the Clintonia Funeral Directors and Embalmers Act (“FDEA”) that same

year. In 1956, Senator Jerome Gaines, who was also a third generation mortician, along with his

colleagues pushed for an amendment to the FDEA. The amendment, embodied in § 18. 942,

Clint. Stat., would make intrastate sales of time-of-need caskets in Clintonia without a valid

license a crime, punishable by a $1,000 fine and up to one year in prison. R. at 3. Senator Jerome

Gaines, during the debates of the bill, was noted as saying “…we need to protect morticians in

Clinton from unlicensed competition….Call it public safety, call it consumer protection, justify it

however you like, but pass this bill to keep Clintonia’s morticians thriving.” R. at 4-5. Gaines

also presented a study conducted in 1955 showing at least 10% of unlicensed retail casket sellers

took advantage of consumers by selling caskets ,which did not meet the standards prescribed by

the FDEA1. R. at 5-6. This study was debunked in 2011 as baseless propaganda promulgated by

the board. Id.

In addition to criminalizing the unlicensed sale of time-of-need caskets in Clintonia, the

FDEA established the Board of Funeral Directors and Embalmers. R. at 2. The Board has the

exclusive power to administer licenses to sell caskets, as well as the exclusive power to

promulgate license requirements. R. at 3-4. The Board is made up fourteen members, eight of 1 The standards laid out by the FDEA were originally designed to prevent harmful leakage from the caskets, but were later repealed in 2012. Family members are currently permitted to bury their family members in homemade caskets if they so choose.

2

whom are funeral directors, with the other six being unaffiliated with the funeral industry. R. at

3. Currently, the requirements for obtaining a license to sell include two paths. The first

requires prospective licensees to complete a year of accredited course work at a mortuary school,

where only 5% of such course relate to casket and urn issues, and then a subsequent two years of

apprenticeship with a licensed funeral director. R. at 4. Alternatively, a prospective licensee can

complete three years of an apprenticeship. Id. Both paths require the candidate to pass the

funeral directors’ examination to receive their funeral director’s license and be able to conduct

intrastate sales of caskets. Id. The FDEA has gone unchallenged until today, despite caskets sold

by funeral directors being approximately 800% more expensive than identical caskets sold by

unlicensed retailers. R. at 5.

In 2012, James T. Oliver, left his studies as a monk at St. Michael’s Abbey and began

manufacturing and selling plain wooden caskets out of his home at 2241 Evidence Alley,

Sandersburg, Clintonia. Id. Oliver also created a website to facilitate his casket sales, which

included selling the caskets both interstate and interstate. Id.

In December of 2013, retired F.B.I. Special Agent Bruce Walker began to make funeral

arrangements for his recently deceased mother in Clintonia. R. at 5-6. After a funeral director in

Sandersburg informed him that a casket would cost $9,000, Walker discovered Oliver’s website

and contacted him about purchasing a casket. Id. After inspecting the casket provided by Oliver,

Walker purchased the casket for $1,000. Id. After the funeral service, Walker called Oliver to

express his gratification for Oliver’s service, at which time Oliver informed Walker that there

was a statute criminalizing the unlicensed sale of caskets within Clintonia. Id. Oliver further

commented that he wasn’t concerned, as the statute is never enforced and he has a copy of a

duplicate listens on a USB. Id.

3

The next day after learning about Oliver’s possible disregard for the law, Walker drove to

Oliver’s home to confront him. Id. Although there was no vehicle in the driveway, Walker

knocked on the door, which swung open. Id. Walker proceeded to enter Oliver’s home, with

calls for Oliver going unanswered, reached Oliver’s bedroom. Id. Walker observed a flash drive

on Oliver’s nightstand labeled “Dup. License/Fun!,” which walker took and later plugged into

his own personal computer. Id. Once the flash drive loaded onto the computer, he observed two

folders labeled “DL” and “F.” Id. Walker clicked on the F folder, which contained 100

randomly numbered subfolders. R. at 6-7. Walker click don the first subfolder, which contained

eleven JPEG files numbered 1-11. Id. With no way to tell what the JPEG files contained simply

by reading their title, Walker clicked on a random JPEG file, which appeared to contain a young

minor engaged in sexual activity with an adult. Id.

Walker then took the flash drive to the Sandersburg police department, where he spoke

with Private Rookie Jones and explained what he found on the flash drive, but not how he had

come into possession of the drive. Id. Jones asked whether Walker was a cop or private citizen

and what he had seen on the flash drive, and responded “Awesome, good enough for me.” Id.

Walker guided jones to the F folder and the first subfolder, at which time he said, “it’s one of

those” and walked away. Id. At trial, Walker could not recall specifically which photo he looked

at, and never communicated that information to Jones. Id. Jones proceeded to click through

images 1-10 in order, at which time each JPEG contained potential child pornography, except

image 10 which contained a printable copy of Oliver’s fake license to sell caskets. Id. Jones

then turned the flash drive over to his superiors, claiming a “private citizen” had given him the

drive after seeing child pornography on it. Id.

4

Procedural History

Circuit Court for the Fifteenth Judicial Circuit, Bill County Clintonia.

Oliver was arrested and charged with one count of selling a casket without a Funeral

Director’s License (Clint. Stat. § 18.942), one count of forging a Funeral Director’s License

(Clint. Stat. § 18.978), and nine counts of possessing distinct images of child pornography (Clint.

Stat. § 18.999). R. at 2. Oliver moved to dismiss the charge of selling a casket without a Funeral

Director’s License, alleging that Clint. Stat. § 18.942 violated his Fourteenth Amendment right

to equal protection and due process of law. Id. Oliver further alleged that counts evidence

relating to the nine counts of child pornography were obtained in violation of his Fourth

Amendment right to be free from unreasonable searches and seizures. Id. The Circuit Court

granted the Defendant’s motion on both issues. Id.

The Supreme Court of Clintonia

The Supreme Court of Clintonia reversed the Circuit Court’s decision on both grounds.

R. at 25. In regards to Clint. Stat. § 18.942, the Court found that the statute was passed to ensure

consumer protection and protect public health, and the statute therefore was rationally related to

government interests. R. at 22. The Court also concluded that economic protectionism is a

legitimate government interest, and therefor pass rational basis scrutiny. Id. The Court also

concluded that Oliver’s expectation of privacy to the specific subfolder on the USB was

eliminated once Walker viewed it, and therefore there could not be a claim regarding Fourth

Amendment protections. R. at 24.

5

SUMMARY OF THE ARGUMENT

The Supreme Court of Clintonia’s rational basis review was flawed

The Due Process Clause of the Fourteenth Amendment acts as a safeguard for

individuals. It guarantees that both procedural and substantive due process is extended to every

individual with whom the State seeks to deprive of life, liberty or property. Likewise, the Equal

Protection Clause of the Fourteenth Amendment ensures that States cannot deny persons within

its borders the equal protection of the laws. When challenges are broght that a law or regulation

violates economic liberties, the law must be scrutinized under rational basis review.

In applying rational basis review, the Supreme Court of Clintonia believed that it need

not need to see if the factual premises upon which a statute was enacted, still continued to hold

true today. If the had, it would have rendered the FDEA regulations and by extension, its

enforcement provision irrational. Under rational basis review, laws are presumed constitutional

valid. Yet, this Court has established in it’s landmark opinion in Carolene Products, that this

presumption of validity can be overcome by showing that the facts that were relied upon by the

government at the time of a statute’s enactment no longer exist today. U.S. v. Carolene Products,

304 U.S. 144, 153 (1938). Therefore, in applying the changed circumstances doctrine proscribed

by Carolene Products, the licensing requirement had no rational relationship to Clintonia’s

purported interest of health, public safety and consumer protection.

Additionally, the Supreme Court of Clintonia found that mere economic protectionism,

standing alone, was a legitimate government interest. This is entirely inconsistent with this

Court’s jurisprudence, which requires economic protectionism to be coupled with a public

benefit.

6

Fourth Amendment.

According to the private search doctrine, when a private citizen searches a person’s

property or effects, then the expectation of privacy to the item searched is no longer viable, and

the Fourth Amendment is not implicated. United States v. Jacobsen, 466 U.S. 109, 114 (1984).

This allows government actor’s to view and use information discovered by the private search. Id.

However, the subsequent government search is expressly limited by the private search, and the

government actor must proceed with virtual certainty that his search will reveal no more

information than what was told to him by the private actor. Id. at 11. Because of the vast storage

capacity of electronic devices, the threshold in considering a government actors “virtual

certainty” as to what he will find is greatly increased. United States v. Lichtenberger, 786 F.3d

478, 482 (6th Cir. 2015).

Despite these clear standards laid out by American Jurisprudence, the State of Clintonia

remains insistent on including evidence obtained by clear violations of the Fourth Amendment.

When Private Rookie Jones inspected the photos on the flash drive, he inspected ten in total, far

exceeding the single photo viewed by initial private actor, Bruce Walker. Indeed, due to the vast

storage capacity of the flash drive and the lack of indicating features associated with the JPEG

files, there is no possible inclination that Jones could have any certainty that his viewing of ten

JPEG files would not reveal more than what was told to him by Walker. Indeed, Jones’s search

did reveal more information than Walker told him, in the form of a fake Funeral Director’s

license in the tenth JPEG file viewed by Jones. Allowing this evidence to stand in the face of a

blatant violation to James T. Oliver’s rights would be contrary to this Court’s precedent and a

severe erosion of Fourth Amendment rights.

7

Good Faith Exception. Alternatively, the decision in United States v. Jacobsen has been

overruled by this Court’s decision in United States v. Jones, which held that a Fourth

Amendment search occurs when a physical trespass occurs. United States v. Jones, 565 U.S. 400,

406 (2012). Nonetheless, the State of Clintonia maintains that the evidence is admissible in light

of the Fourth Amendment violation based on this Court’s decision in Davis v. United States,

which extended the good faith exception when government actors are acting in strict compliance

with binding precedent. Davis v. United States, 564 U.S. 229, 241 (2011).

First, if Jacobsen has been overruled, then Jones’s actions could not have been the result

in a good faith belief that he was acting in accord with binding precedent. Even if Jacobsen is

found to coexist with Jones, Jones’s actions were not carried out in objective good faith, but

rather as a means to exploit precedent and gain illegal access to constitutionally protected

property. Further, when Jones exceeded the scope of the initial private search, his actions were

not in strict compliance with Jacobsen’s precedent, meaning his actions fall outside of the good

faith exception articulated in Davis. Finally, suppressing the evidence illegally obtained by

Jones would serve a significant deterrent purpose against future violations of the Fourth

Amendment.

ARGUMENT

I. WHILE APPLYING RATIONAL BASIS REVIEW THE SUPREME COURT OF CLINTONIA ERRED IN UTILIZING THE MURILLO EXCEPTION, WHICH DOES NOT ACCOUNT FOR THE DOCTRINE OF CHANGED CIRCUMSTANCES.

The Fourteenth Amendment to the Untied States Constitution provides, in pertinent part, that

no state shall “deprive any person of life, liberty, or property, without due process of law.” U.S.

CONST. amend. XIV, § 1. Similarly, under the Fourteenth Amendment, States are prohibited

from denying “any person within its jurisdiction the equal protection of the laws.” Id. This Court

8

has established a three-tiered test for examining challenges under either clause. See Craigmiles v.

Giles, 312 F.3d 220, 223 (6th Cir. 2002). When it comes to statutes that regulate economic

activity, the same level of judicial scrutiny is applied under the due process or equal protection

clauses—i.e, rational basis review. See Burlington N. R. Co. v. Dep't of Pub. Serv. Regulation,

763 F.2d 1106, 1109 (9th Cir. 1985).

Under rational basis review legislation will be upheld if it bears a rational relationship to a

legitimate state interest. See Williamson v. Lee Optical Co., 348 U.S. 483, 488 (1955); see also

Dandridge v. Williams, 397 U.S. 471, 485 (1970). In addition, laws subject to rational basis are

presumed to be valid, and plaintiffs have the burden of proof of negating every plausible basis

for the challenged law. Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364

(1973). Therefore, a plaintiff succeeds by showing that the law is entirely irrational and/or not

logically related to any legitimate government interest. Although the Supreme Court of Clintonia

in its review of the FDEA’s licensing requirement and § 18.942 enforcement provision found a

legitimate state interest in health, public safety and consumer protection, the court failed to

account for the changed circumstances between the statute’s enactment in 1956 and the facts as

they are today.

A. Proper Rational Basis Review Requires Courts to Evaluate the

Legitimacy of the Government’s Interest in the Challenged Law Based on the Facts and Circumstances that Currently Exist

Changes in circumstances can render a previously rational law unconstitutional. In the

pioneering rational basis case of U.S. v. Carolene Products, Justice Stone writing for the

majority stated, “the constitutionality of a statute predicated upon the existence of a particular

state of facts may be challenged by showing to the court that those facts have ceased to exist.”

9

Carolene Prod. Co., 304 U.S. 144, 153 (1938) (emphasis added). Thus, when courts are to

determine whether a law is rationally related to a legitimate government interest, it must analyze

that rational relationship based on facts and circumstances as they are today, and not from when

the statute was enacted. This Court reiterated this principle in its decision in Hellerstedt, finding

that “[f]actual developments may show that constitutional harm, which seemed too remote or

speculative to afford relief at the time of an earlier suit, was in fact indisputable.” Whole

Woman's Health v. Hellerstedt, 136 S. Ct. 2292, 2305 (2016). It was this Court view that these

kinds of changed circumstances will give rise to a new constitutional claim. Id.

Indeed, several courts readily apply the doctrine of changed circumstances in evaluating

constitutional challenges under rational basis review. For example, the Tenth Circuit allowed a

substantive due process challenge to be brought against a Denver city ordinance that banned its

citizens from owning pit bulls. See Dias v. City & Cty. of Denver, 567 F.3d 1169, 1173 (10th

Cir. 2009). The ordinance had allowed officials to impound any pit bull found in Denver, and if

the dog were seized, it would be destroyed unless the owner paid the costs of impoundment and

agreed to remove the dog from Denver. Id. at 1173. The Tenth Circuit found that Denver had a

legitimate interest in animal control for the protection of health and safety of the public. Id. at

1183. Nevertheless, the court held that the challengers of the ordinance (pit-bull owners) stated a

plausible substantive due process violation worthy of withstanding a motion to dismiss. Id. at

1184. The Tenth Circuit acknowledged the plaintiffs’ argument “that although pit bull bans

sustained twenty years ago may have been justified by the then-existing body of knowledge, the

state of science in 2009 is such that the bans are no longer rational.” Id. at 1183.

Similarly, the Seventh Circuit in U.S. v. Moore utilized the doctrine of changed

circumstances in evaluating a constitutional challenge to Congress’ sentencing scheme, which

10

punished those dealing crack cocaine 100 times more severely than those dealing powder

cocaine. See United States v. Moore, 644 F.3d 553, 554 (7th Cir. 2011). Accordingly, the

Seventh Circuit acknowledge that where “a statute [is] predicated upon the existence of a

particular state of facts its constitutionality may be challenged by showing to the court that those

facts have ceased to exist.”(quoting Carolene Products Co., 304 U.S. 144, 153–54 (1938)).

In our present case, while the Supreme Court of Clintonia’s opinion briefly reviewed the

changed circumstances doctrine, it mistakenly held that the doctrine was inapplicable. Instead the

court held that the Murillo exception applied.

1. The Clintonia Supreme Court’s use of the Murillo exception were

misguided

There is considerable confusion among lower as to whether rational basis review focuses

on the laws rationality when the law was enacted or instead the rationality of its application in

the present. See Burlington, 763 F.2d 1106, 1111 (9th Cir. 1985) (stating that “the Supreme

Court has been ambivalent on whether changed circumstances can transform a once-rational

statute into an irrational law.”); see also Murillo v. Bambrick, 681 F2d. 898, 912 n. 27 (3d Cir.

1982). (stating that the “Supreme Court appears not to have determined definitively whether

changed conditions are a relevant consideration in equal protection analysis.”)

Finding the doctrine of changed circumstance to be unclear, the Third Circuit adopted its

own theory on how to analyze statutes under rational basis review. Essentially the Murillo

exception states that “[t]here may be a role for the courts to play when a statute, rendered

manifestly unreasonable by changed conditions, remains in effect for many years without

legislative action.” Id. at 912. However, the Third Circuit goes on to say that cases where “the

11

legislature has proceeded with promptness, judicial intervention is neither necessary nor

appropriate.” Id.

In Murillo, the Third Circuit upheld a New Jersey statute that charged higher filing fees

for matrimonial cases then in other civil cases. Id. at 900. At the time of the New Jersey statute’s

enactment in 1971, matrimonial filing fees were higher because of their additional costs (the cost

covered an extra hearing in front of a “master” who would conduct preliminary divorce

proceedings). Id. By the time plaintiffs brought a class action suit claiming that the statute

violated equal protection, the year was 1979 and the use of a “master” was gone. Id. However,

the additional hearing fee still remained. Id. The proceedings were stayed at the district level in

order to give the New Jersey legislature an opportunity to review the fee arrangement. Id. at 900.

The legislature would repeal the statute, however the ruling did not apply to those who brought

the class action suit. Id. at 910. The Third Circuit held that the statute did not violate their equal

protection rights under rational basis, and furthermore that the statue was justified in imposing a

fee upon these individuals because in 1971, New Jersey had a legitimate interest in wanting to

prevent divorce.

Indeed it is true that under rational basis review, great deference is given to the

legislature. See F.C.C. v. Beach Commc'ns, Inc., 508 U.S. 307, 313 (1993) (stating that equal

protection is not a license for courts to judge the wisdom, fairness, or logic of legislative

choices). Additionally, this Court has said, “a State has no obligation to produce evidence to

sustain the rationality of a statutory classification.” Heller v. Doe by Doe, 509 U.S. 312, 320

(1993). However, this does not mean that the legislature is given a rubber stamp. While a

deferential standard, rational basis review is also an important safeguard against irrational

government action. See City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 433 (1985)

12

(invalidating a zoning ordinance that discriminated against those with mental disabilities on

rational basis review). Legislatures are susceptible to powerful constituents. Thus, in many ways

rational basis review provides the only constitutional restraint on the vast majority of laws and

regulations that restrict economic liberties.

Some may even contend that courts do not have the same wisdom, or the expertise of the

legislature when it comes to whether new factual information can invalidate a law. However, as

stated previously, the burden of proof lies with plaintiffs to negative every plausible basis for the

government’s rationale. Part of this burden of proof can be met by showing that a law is

antiquated and is thus irrational based on current circumstance.

. 2. Based on a correct analysis that takes into account present facts, the

FDEA’s licensing requirement and by extension § 18.942 has no rational relationship with Clintonia’s interests in consumer protection, health and public safety.

Applying the correct approach to rational basis, which accounts for facts and

circumstances as they are today, there can be found no logical connection between the licensing

requirement and Clintonia’s proffered interests. The Supreme Court of Clintonia correctly

recognized that the State has a legitimate interest in consumer protection, health and public

safety, but erred in finding that § 18.942 was rationally related to those interests. Additionally,

by holding that the doctrine of changed circumstances was not applicable the court’s analysis

was flawed.

As of today there are several changed circumstances that indicate that § 18.942 no longer

relates to Clintonia’s interest in consumer protection. First, when the legislator amended the

FDEA to include the prohibition against intrastate casket sales without a license, Clintonia may

have had real concerns that caskets meet certain design requirements. The State claims it wanted

13

to ensure that corpses were placed in secure caskets that could not leak. R at 5. The Clintonia

legislature believed that such leakage could contaminate ground water or expose visitors to

bacteria from a decomposing body, especially if the decedent had died from a communicable

disease. Yet, applying the changed circumstances doctrine, the regulations that used to require

that caskets meet certain specifications were repealed in 2011. Furthermore, Clintonia currently

places no requirements on how caskets need to be designed.

Similarly, while the Clintonia legislature relied on a study conducted in 1955 that showed

that at least 10% of unlicensed retail casket sellers took advantage of consumers by selling

caskets that did not meet the standards proscribed by the FDEA, current evidence shows that this

study was false. In 2011, it was revealed that the study was a propaganda tool by sponsord by the

Funeral Board of Directors. Thus, Oliver has meat his burden of showing that the FDEA’s

licensing statute and by extension § 18.942, is entirely irrational with respect to the State’s

interest in protecting consumers from deceptive sales tactics. Therefore, after applying this

Courts reasoning exposed in Carolene Products in regards to rational basis review, the over

whelming evidence supports a dismissal of Oliver’s convictions under the FDEA and § 18. 942.

B. Pure Economic Protectionism is Never a Legitimate Government Interest

After showing that it’s arguments for health, public safety, and consumer protection are

unpersuasive, Clintonia also claims that mere economic protectionism is a legitimate state

interest. Pure economic protectionism can be defined as the government favoring or protecting

private economic interest from competition without any valid public purpose or benefit. Gerald

S. Kerska, Economic Protectionism and Occupational Licensing Reform, 101 Minn. L. Rev.

1703, 1705 (2017). As this Court has said, “where simple economic protectionism is effected by

state legislation, a virtually per se rule of invalidity has been erected.” City of Philadelphia v.

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New Jersey, 437 U.S. 617, 624 (1978). Furthermore, “if the state regulation constitutes a

substantial impairment, the State, in justification, must have a significant and legitimate public

purpose behind the regulation, such as the remedying of a broad and general social or economic

problem.” Energy Reserves Grp., Inc. v. Kansas Power & Light Co., 459 U.S. 400, 411–12,

(1983).

The State of Clintonia has correctly pointed out that this Court was referring to interstate

commerce in it’s decisions in both City of Philadelphia and Energy Reserves Grp; not intrastate

commerce as in our case. However, this Court through these holdings has shown an abhorance

for regulations that favoring select groups without any public benefit. Likewise several lower

courts have extended this rationale to intrastate cases. See St. Joseph Abbey v. Castille, 712 F.3d

215, 222 (5th Cir. 2013) (stating “neither precedent nor broader principles suggest that mere

economic protection of a particular industry is a legitimate governmental purpose.”); see also,

Merrifield v. Lockyer, 547 F.3d 978, 991 n. 15 (9th Cir. 2008) (stating that mere economic

protectionism for the sake of economic protectionism is irrational with respect to determining if a

classification survives rational basis review).

In a strikingly similar case to our present case, Craigmiles v. Giles, the Sixth Circuit struck

down a Tennessee statute that forbid anyone in the state from selling caskets within Tennessee

without being licensed as a funeral director. See Craigmiles v. Giles, 312 F.3d 220, 224 (6th Cir.

2002) (stating that courts have repeatedly recognized that protecting a discrete interest group

from economic competition is not a legitimate governmental purpose.”). The plaintiffs in Giles

were two independent casket stores that sold urns, caskets and other merchandise and did not

engage in embalming, funeral services or burials. Id.at 223. To obtain a license, applicants had to

endure two years of education and training, most of which had nothing to do with casket

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selection or design. Id. at 222. The Sixth Circuit looked at evidence presented in the district court

that showed licensed funeral home directors generally marked up the prices of their caskets by

250 to 600%, while casket retailers like the plaintiffs in that case sold caskets at lower margins.

Id. at 224. The court found that dedicating two years and thousands of dollars to education and

training required for the license was a substantial barrier for those trying to enter into the

Tennessee casket market. Id. Thus, the court held that the statute was nothing more than an

attempt to prevent competition and a obstruction to those who might sell caskets at lower costs.

Id.

This case against Oliver is a prime example of economic protectionism and is likewise

analogous to the issues in Giles. Here the Clintonia legislature clearly favored a powerful group

of morticians in order to stifle new competitors in casket sales. Oliver only sold casket and did

not engage in other funeral services. Under the FDEA, to get a funderal director’s license in

Clintonia, Oliver must undergo extensive training (mortuary school for one year and then

complete two years of apprenticeship, or 3 years of apprenticeship). Yet, very little of this

training would have his skills in casket making. Only 5% of the mortuary schools curriculum

related to casket issues, and the apprenticeship had no curriculum but required a candidate to

embalm 25 bodies. Just like the plaintiff’s in Giles, there is evidence pointing to the enormous

mark-up (roughly 800%) of caskets sold by licensed funeral directors

Recently, certain courts of appeals have held that regulations whose only purpose is to shield

a particular group from economic competition will survive rational basis review. For instance, in

Powers v. Harris, the Tenth Circuit has held that “ intra-state economic protectionism, absent a

violation of a specific federal statutory or constitutional provision, is a legitimate state interest.”

Powers v. Harris, 379 F.3d 1208, 1222 (10th Cir. 2004). Likewise, the Second Circuit

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Sensational Smiles, LLP v. Mullen, joined the Tenth Circuit in its view that “economic

favoritism is rational for purposes of our review of state action under the Fourteenth

Amendment.” Sensational Smiles, LLC v. Mullen, 793 F.3d 281, 286 (2d Cir. 2015). The Second

Circuit reasoned that its “decision was guided by precedent, principle, and practicalities….

because the legislature need not articulate any reason for enacting its economic regulations.” Id.

Yet, neither the Tenth nor the Second Circuit can point to any precedent set forth by this

Court that does not require economic protectionism without any public benefit. Finding the State

of Clintonia’s arguments for economic protectionism unconvincing and unsupported this Court

cannot allow Clintonia to claim economic protectionism as a legitimate State interest.

II. PRIVATE ROOKIE JONES’S SEARCH OF THE USB EXCEEDED THE SCOPE OF BRUCE WALKER’S INITIAL SEARCH AND VIOLATED JAMES T. OLIVER’S FOURTH AMENDMENT RIGHTS. It is clear that the protection against unreasonable searches and seizures provided by the

Fourth Amendment does not protect citizens against searches, whether reasonable or

unreasonable, when conducted by private citizens who are not acting on behalf of the

government. United States v. Jacobsen, 466 U.S. 109, 113-114 (1984). However, subsequent

searches conducted by a government actor of the same property are expressly limited by the

scope of the initial private search, and there must be a virtual certainty to what the government

actor is going to find during that search. Id. at 116, 118-120. Private Rookie Jones, with no

virtual certainty of what was contained in the subfolder shown to him by Bruce Walker, clearly

exceeded the scope of the initial search, viewing ten photos in total, nine more than the one seen

by Walker. (R. at 7).

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A. With No Virtual Certainty Of What He Would Find, Private Jones Exceeded The Scope Of The Initial Private Search And Therefore Conducted A Fourth Amendment Search. When a government agent infringes on a private citizens reasonable expectation of

privacy, a Fourth Amendment “search” has occurred, and therefore must be done after obtaining

a warrant or the government agent must be able to show that an exception applied to the search.

United States v. Lichtenberger, 786 F.3d 478, 482 (6th Cir. 2015). When a private individual

conducts a search, the protections of the Fourth Amendment do not apply, and government

agents are then permitted to view and use the now non-private information discovered during the

private search without first obtaining a warrant. Jacobsen, 466 U.S. at 117. However,

subsequent warrantless searches conducted by the government are expressly limited to the scope

of the initial private search. Id. at 116.

To proceed within the scope of the initial private search, government actors must have

virtual certainty that their subsequent search of the device will not grant them more information

than has already been told to them by the private actor. Lichtenberger at 488. In Lichtenberger,

a government actor was informed by the defendant’s girlfriend that she had found child

pornography on his computer. Id. at 480. The initial private search by the girlfriend and her

mother resulted in the two clicking different folders and thumbnails, which eventually led to

pictures of adults engaging in sexual acts with minors to display on the laptop. Id. Once the

government actor arrived at the house, he instructed the defendant’s girlfriend to show him, at

which time she began randomly clicking on folders and thumbnails to show the detective the

sexually explicit images. Id. The defendant’s girlfriend later testified that she had seen roughly

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100 images, was not sure if the images she showed the government actor were seen in the initial

private search. Id. at 481.

Noting the immense storage capacity of laptops, the Sixth Circuit concluded that there

was no “absolutely no virtual certainty” that the government actor’s inspection of the laptop

would not reveal to him more information than what had already been told to him by the

defendant’s girlfriend. Id. at 488. The court further noted that because neither the defendant’s

girlfriend or the government actor could be sure that the same photos were displayed during both

searches, there was a very real possibility that the search conducted by the government actor

exceeded the initial private search. Id.

Here, it is clear that Private Jones's search far exceeded that of Bruce Walkers. Walker’s

initial search revealed one sexually explicit image in a folder containing eleven JPEG files. R. at

7. When Walker turned the USB over to Jones, he guided Jones to the folder labeled F, and said

“it’s one of those” and walked away. Id. Walker indicated that only one of the files contained

sexually explicit material, yet Jones proceeded to click on ten images labeled one through ten. Id.

Walker could not recall which specific image he saw, and Jones viewing an additional nine

images subsequent to the private search clearly exceeded the initial scope of the private search.

Indeed, was absolutely no virtual certainty that Jones could have known that the

subsequent search would not reveal more than had been told to him by Walker. The Supreme

Court of Clintonia’s claim that “the existence of one such pornographic photograph in a sub fold

with sequentially numbered files objectively indicated that the rest of the files contained

similarly illicit material” is rebutted by fact that the tenth image viewed by Jones contained

Oliver’s fake funeral director’s license, not pornographic material. R. at 24. The court in

Lichtenberger also addresses this. There, the court noted that because the folders “labeled with

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numbers, not words—could have contained, for example, explicit photos of [the defendant]

himself: legal, unrelated to the crime alleged, and the most private sort of images.”

Lichtenberger at 489. The Supreme Court of Clintonia nonetheless insists granting government

actors a license to assume digital files contain illicit material, allowing them to exceed private

searches and avoid the scrutiny afforded to citizens by the Fourth Amendment.

Nor could Jones be certain of the images that would appear simply by looking at the

JPEG tiles. In United States v. Tosti, the Ninth Circuit found that the defendant had no

expectation of privacy, even after a government actor enlarged thumbnail versions of photos

viewed during a private search, because the detective could tell by looking at the thumbnail

versions that the pictures contained child pornography. United States v. Tosti 733 F.3d 816, 819

(9th Cir. 2013). Because the thumbnails had already been seen by private actors, and because

enlarging the thumbnails would not reveal anymore information than the government actor had

already received, the defendant’s expectation of privacy was already frustrated and the

government actors search did not violate the Fourth Amendment. Id. at 822. In contrast, it was

impossible to tell the contents of the files simply by looking at the JPEG tiles. R. at 7. Oliver's

expectation of privacy of these files was not frustrated because they had not yet been viewed by

a private actor. Jones simply had no way to know what was contained in the JPEG files aside

from what Walker told him, and because Walker could not identify which file he viewed, Jones

far exceeded the scope of the initial search in violation of the Fourth Amendment.

B. Storage Capacity And The Nature Of Electronic Devices Implicate Greater Privacy Concerns. Judge Wheeler’s analysis of Riley and the privacy concerns that accompany electronic

devices should be adopted. In Riley v. California, this Court discussed the privacy concerns in

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the context of modern Cell Phones. There, this Court spoke about the massive storage capacity

cell phones have, noting “a cell phone collects in one place many distinct types of information—

an address, a note, a prescription, a bank statement, a video—that reveal much more in

combination than any isolated record…a cell phone’s capacity allows even just one type of

information to convey far more than previously possible.” Riley v. California, 134 S. Ct. 2473,

2489 (2014).

Although Riley was discussing a search incident to arrest, the Lichtenberger court

extended the reasoning to the private search doctrine. There, the Sixth Circuit explained “as with

any Fourth Amendment inquiry, we must weigh the government’s interest in conducting the

search of [the defendant’s] property against his privacy interest…the nature of the electronic

device greatly increases the potential privacy interests at stake.” Lichtenberger at 488.

Specifically, the court noted that because a laptop has even greater storage capacity than a cell

phone, the virtual certainty threshold announced in Jacobsen requires even more from law

enforcement officers then what was present in that case. Id.

That line of reasoning certainly extends to the case at hand. When Riley was decided, the

Court noted that the top selling smart phone at the time was available with up to 64 gigabytes of

storage capacity. Riley at 2489. Currently, the most powerful laptop sold by Apple Computers

comes with a storage capacity of 512 gigabytes. MacBook Pro 15 Inch Specs

https://www.apple.com/macbook-pro/specs/. By contrast, the flash drive which belong to Oliver

had a storage capacity of two terabytes, nearly four times that of Apple’s most powerful laptop

available, or more than 35 times more storage capacity than was available in the best selling

smart phone when Riley was decided. (R. at 6). The flash drive searched in this case was capable

of storing a seemingly infinite amount of information. With technology increasing at an

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increasingly rapid rate, it is important that jurisprudence considers the immense privacy interests

citizens are increasingly placing in their electronic devices. Requiring government actors to

remain in the scope of the private search simply upholds the Fourth Amendment and previous

jurisprudence by requiring exceeding searches to be done so after a warrant is obtained.

The language of Jacobsen is clear: a government actor is not to exceed the scope of the

private search, and must only proceed if he is virtually certain what he will find reveal to him

more than what was revealed by the private actor. Private Jones did not have virtual certainty of

what he would find on that flash drive. What Private Jones did find far exceeded the scope of the

initial search conducted by Bruce Walker. Therefore, we ask this Court preserve those privacy

rights afforded to citizens by the Fourth Amendment and reverse the Supreme Court of

Clintonia’s decision.

C. Private Rookie Jones’ Actions are Not Protected By the Good Faith Exception.

Alternatively, this court has ruled that Fourth Amendment rights do not “rise and fall

with the Katz formulation” of a search, and when a physical trespass occurs, that constitutes a

search within the meaning of the Fourth Amendment. United States v. Jones, 565 U.S. 400, 406

(2012). As the dissent notes, this Court’s decision in Jones has effectively overruled the

Jacobsen decision. (R. at 25). Nonetheless, the government argues that if Jacobsen was

overruled by Jones, Private Jones’s actions were protected by the good faith exception. This

assertion represents a plain misunderstanding of the good faith exception, and it cannot extend to

Jones’s violation of Oliver’s Fourth Amendment rights.

In Jones, this Court expressed the principle that Fourth Amendment searches occur when

a government actor infringes on a reasonable expectation of privacy or when the government

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actor physically intrudes a constitutionally protected space or thing. United States v. Ackerman,

831 F.3d 1292, 1307 (10th Cir. 2016). This was clearly the case when Jones observed ten

images contained in the subfolder labeled F. Electronically stored data is no doubt a

constitutionally protected thing, yet Jones, acting off information that one image contained illicit

material, took free reign to look at ten of the eleven JPEG files in the folder. (R. at 7). Therefore,

under the Jones analysis, there is no doubt that Jones performed a warrantless search of the flash

drive in violation of the Fourth Amendment.

Still, the government contends that Jones’s actions are excusable based on the good faith

exception. If this Court finds that Jones did indeed overrule Jacobsen, this simply cannot be

true, because as the dissent notes, the exception “requir[es] officers to act with objectively

reasonable reliance on binding appellate precedent to invoke the good faith exception.” (R. at

25)(citing Davis v. United States, 564 U.S. 229, 241 (2011)). Obviously, if Jacobsen had been

overruled, it was no longer binding precedent and relying on it’s precedent would not be

objectively reasonable.

Even if this Court finds that the decision in Jones does not overrule Jacobsen, but rather

coexists with it’s precedent, the good faith exception still does not extend to Jones’s actions. The

good faith exception was first introduced by this Court in United States v. Leon, where the Court

held that “evidence obtained in the reasonable good-faith belief that a search or seizure was in

accord with the Fourth Amendment.” 468 U.S. 897 (1984)(quoting Illinois v. Gates, 462 U.S.

213, 255 (1983)(White, J., concurring in judgment)). As a judicial made remedy, the Leon court

made clear that the exclusionary rule is meant to apply when suppressing the illegally obtained

evidence would serve little deterrent purpose. Id. at 920-921. When analyzing conduct resulting

in Fourth Amendment violations, courts must consider whether suppressing the evidence will

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“instill in those particular investigating officers, or in their future counterparts, a greater degree

of care towards the rights of the accused.” Id. at 919 (quoting United States v. Peltier, 422 U.S.

531, 542 (1975). Initially, the good faith exception was limited to evidence obtained as a result

of defective or insufficient warrants. See Id. In Davis v. United States, this Court expanding the

exception to include evidence obtained when government actors are acting in objectively

reasonable reliance on binding appellate precedent. 564 U.S. at 232. There, the Court found that

when evidence is found as a result from government actors acting in strict compliance with

binding appellate precedent, that evidence should be admitted by way of the good faith

exception. Id. at 240 (emphasis added).

First, if Jacobsen is found to be binding appellate precedent, Jones’s actions do not meet

the strict compliance requirement noted by the Davis Court. The Jacobsen Court was clear,

noting that warrantless government searches following the heels of a private search are expressly

limited to the scope of the initial private search. 466 U.S. at 116. To exceed the scope of that

initial search, Jones must have had a virtual certainty that the search would not reveal more

information than was told to him by the private actor. Id. at 119. By viewing nine more photos

than Bruce Walker’s initial scope, ten in total, Jones unequivocally exceeded the scope of the

initial private search. R. at 7. Additionally, there was no way that Jones could have had a virtual

certainty that viewing the images would reveal more information than was told to him by

Walker. Walker told Jones that one of the photos in the subfolder contained child pornography,

and the contents of the individual JPEG files were not revealed by the tile icons located in the

subfolder. Id. Indeed, with the vast storage possibilities represented by electronic devices, the

eleven images located in the subfolder could have contained any number of possible photos other

than child pornography, as evidenced by the tenth photo viewed by Jones being that of Oliver’s

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fake license. Id. Without Walker identifying which photo he had viewed, there was no way of

Jones knowing what the individual photos would contain.

Second, it cannot be said that Jones was acting in objective good faith during the search.

During the initial exchange with Walker, Jones ensures he is speaking with a private citizen, and

responds “Awesome, good enough for me.” Id. Objective good faith would no doubt require

more of a follow up to how Walker came into possession of the flash drive and specifically what

he had seen. Instead, Jones heard the words “private citizen” and felt that the private search

doctrine gave him free reign to violate Oliver’s Fourth Amendment rights. Jones’s objective bad

faith is further evidenced by his viewing of the JPEG files. Once Jones viewed the tenth image

in the folder, Oliver’s fake license, he immediately stopped viewing and delivered the flash drive

to his supervisors without viewing the eleventh image. Id. Despite seeing nine images of

potential child pornography out of a folder containing just eleven images, Jones left the eleventh

photo unopened because he knew that he had exceeded the scope of the initial private search and

already violated Oliver’s Fourth Amendment rights. Indeed, Oliver’s supervisors and the state

knew this was the case as well, as they chose not to examine or introduce the eleventh file into

evidence, despite the fact that, as the Supreme Court of Clintonia notes themselves, “the

existence of one such pornographic photograph in a subfolder…objectively indicated that the rest

of the files contained similarly illicit material.” R. at 24.

Finally, suppression of this illegally obtained evidence would have a significant deterrent

effect on future police conduct. Unlike Leon, where police officer’s were relying on approval

from a warrant issued by a magistrate judge, or in Davis, where officer’s were acting in strict

compliance with precedent set by a Circuit court, Jones was acting in reliance on the word of a

private citizen. Jones, unlike the officers two aforementioned decisions, had other steps

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available to him to ensure he would not infringe upon Oliver’s Fourth Amendment rights. The

most obvious solution, especially because the flash drive was already secure in his possession

and was not at risk of the evidence being erased, was to use the information to provided by

Walker to obtain a warrant to search the contents of the flash drive. This Court has recognized

“Privacy comes at a cost.” Riley, 134 S. Ct. at 2493. Here, suppressing the evidence illegally

obtained by Jones would no doubt serve the deterrent effect this Court expressed in Leon, and

would ensure “a greater degree of care towards the rights of the accused” at a minimal cost to the

ability of law enforcement to do their job.

Jones’s actions were clear and deliberate. They were not done in good faith based on

appellate binding precedent or the approval of a magistrate judge. They were done because he

viewed the words “private citizen” as a free pass to intrude Oliver’s Fourth Amendment rights.

This became clear when he chose not to view the eleventh file after he had found an image

containing Oliver’s fake license, not child pornography. Therefore, if this Court finds in the

alternative that Jones provides a new line of analysis, it should not extend the good faith

exception to Jones’s actions.

CONCLUSION

For the foregoing reasons, Petitioner respectfully request the judgment of the Supreme

Court of Clintonia be reversed.