i

Team No. 9

In the

Supreme Court of the United States

KENNY BEARSON,

Petitioner

v.

THE UNITED STATES OF AMERICA,

Respondent

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Thirteenth Circuit

BRIEF FOR THE PETITIONER

February 27, 2015

ii

QUESTIONS PRESENTED

I. Whether the Thirteenth Circuit erred in finding that the warrantless search

of Kenny Bearson’s home and seizure of his private property violated the

Fourth Amendment of the Constitution.

II. Whether Bearson’s constitutional right to present a complete defense was

violated when the trial court excluded a third-party confession as

inadmissible hearsay, where the confession was trustworthy and critical to

the defense, and probably would have affected the outcome of the trial.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED .......................................................................................... ii

TABLE OF CONTENTS ............................................................................................... iii

TABLE OF AUTHORITIES .......................................................................................... v

STATEMENT OF JURISDICTION ........................................................................... viii

STATEMENT OF THE CASE ....................................................................................... 1

SUMMARY OF ARGUMENT ....................................................................................... 5

ARGUMENT .................................................................................................................. 6

I. THE CHAOSTOWN POLICE CONDUCTED AN UNLAWFUL AND

UNREASONABLE SEARCH AND SEIZURE AT BEARSON’S HOME

WHEN THEY ENTERED AND SEIZED EVIDENCE WITHOUT A

WARRANT .......................................................................................................... 6

A. The Chaostown police officers did not have valid consent to

search Bearson’s home. ............................................................................ 7

1. Caroline Bearson’s consent to a search of the home was

not voluntary.................................................................................. 8

2. Caroline Bearson was not capable of giving valid consent

to search Kenny Bearson’s home because she was not a

co-inhabitant of the home. ........................................................... 10

B. Despite the pawn shop receipt being in plain view, the receipt’s

lack of immediately incriminating character prevented the police

officers from seizing it. ........................................................................... 12

II. BEARSON’S CONSTITUTIONAL RIGHT TO PRESENT A

COMPLETE DEFENSE WAS VIOLATED WHEN THE TRIAL

COURT EXCLUDED A THIRD-PARTY CONFESSION WHICH WAS

RELIABLE AND CRITICAL TO BEARSON’S DEFENSE, AND

WHICH PROBABLY WOULD HAVE AFFECTED THE OUTCOME

OF THE CASE .................................................................................................. 14

A. Bearson had a right to introduce the confession under Chambers

because it bore substantial assurances of trustworthiness and

was critical to Bearson’s defense ........................................................... 15

iv

1. The confession bore substantial assurances of

trustworthiness ............................................................................ 16

2. The confession was critical to Bearson’s defense ....................... 19

B. The lower court’s application of Fed. R. Evid. 804(b)(3) was

arbitrary and disproportionate to the purpose it was designed to

serve, and thus reversal is required under Scheffer ............................. 20

C. Lastly, the trial court’s ruling was prejudicial to Bearson

because the evidence probably would have affected the outcome

of the trial ............................................................................................... 22

CONCLUSION ............................................................................................................. 25

v

TABLE OF AUTHORITIES

UNITED STATES SUPREME COURT CASES

Arizona v. Hicks, 480 U.S. 321 (1987) .................................................................. 12, 13

Boyd v. United States, 116 U.S. 616 (1886) .................................................................. 7

Bumper v. North Carolina, 391 U.S. 543 (1968) ...................................................... 8, 9

Chambers v. Mississippi, 410 U.S. 284 (1973) ................................................... passim

Crane v. Kentucky, 476 U.S. 683 (1986) ................................................... 14, 15, 19, 20

Delaware v. Van Arsdall, 475 U.S. 673 (1986) ........................................................... 14

Fernandez v. California, 134 S. Ct. 1126 (2014) .................................................. 10, 11

Georgia v. Randolph, 547 U.S. 103 (2006) .................................................................. 10

Green v. Georgia, 442 U.S. 95 (1979) ........................................................ 15, 16, 17, 19

Holmes v. South Carolina, 547 U.S. 319 (2006) ......................................................... 14

Horton v. California, 496 U.S. 128 (1990) .............................................................. 7, 12

Illinois v. Rodriguez, 497 U.S. 177 (1990) ............................................................. 10, 11

Kentucky v. King, 131 S. Ct. 1849 (2011) ..................................................................... 7

Mapp v. Ohio, 367 U.S. 643 (1961)................................................................................ 6

Minnesota v. Dickerson, 508 U.S. 366 (1993) ............................................................. 12

Ohio v. Robinette, 519 U.S. 33 (1996) ....................................................................... 7, 8

Payton v. New York, 445 U.S. 573 (1980) ..................................................................... 7

Pennsylvania v. Ritchie, 480 U.S. 39 (1987) ......................................................... 15, 23

Rock v. Arkansas, 483 U.S. 44 (1987) ................................................................... 15, 20

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) ..................................................... 8, 9

vi

United States v. Scheffer, 523 U.S. 303 (1998) .................................................... 14, 20

United States v. Agurs, 427 U.S. 97 (1976) ................................................................ 25

United States v. Bagley, 473 U.S. 667 (1985) ....................................................... 22, 23

United States v. Matlock, 415 U.S. 164 (1974) ........................................................... 10

Washington v. Texas, 388 U.S. 14 (1967) ................................................................... 14

Williamson v. United States, 512 U.S. 594 (1994) ..................................................... 21

UNITED STATES COURT OF APPEALS CASES

Greene v. Lambert, 288 F.3d 1081 (9th Cir. 2002) ..................................................... 20

Malinowski v. Smith, 509 F.3d 328 (7th Cir. 2007) ................................................... 20

United States v. Brainard, 690 F.2d 1117 (4th Cir. 1982) ......................................... 21

United States v. Garcia, 986 F.2d 1135 (7th Cir. 1993) ............................................. 22

United States v. Guillette, 547 F.2d 743 (2nd Cir. 1976)........................................... 21

United States v. Henderson, 736 F.3d 1128 (7th Cir. 2013) ................................ 21, 22

United States v. Jackson, 540 F.3d 578 (7th Cir. 2008) ............................................. 22

United States v. Lindsey, 702 F.3d 1092 (8th Cir. 2013) ........................................... 22

United States v. Perdomo, 929 F.2d 967 (3rd Cir. 1991) ........................................... 23

United States v. Robinson, 39 F.3d 1115 (10th Cir. 1994) ......................................... 24

United States v. Shaffer, 789 F.2d 682 (9th Cir. 1986) .............................................. 23

United States v. Vongxay, 594 F.3d 1111 (9th Cir. 2010) ............................................ 8

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. IV ................................................................................................... 6

vii

STATUTES

18 U.S.C. § 3231 ........................................................................................................... vii

28 U.S.C. § 1254(1) ...................................................................................................... vii

28 U.S.C. § 1291 ........................................................................................................... vii

RULES

Fed. R. Crim. P. 33(b)(1) ................................................................................................ 5

Fed. R. Evid. 804 ...................................................................................................... 5, 21

viii

STATEMENT OF JURISDICTION

The district court had original jurisdiction pursuant to 18 U.S.C. § 3231. The

Court of Appeals for the Thirteenth Circuit had jurisdiction under 28 U.S.C. § 1291.

Petitioner timely filed a writ of certiorari. (R. at 10.) The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

1

STATEMENT OF THE CASE

On January 1, 2010, two Chaostown residents, Billy Smith and Sally Jones,

were found dead in a car parked just off of rural highway 101. (R. at 1.) Both had

died of gunshot wounds from a .30 caliber rifle. (R. at 1.) Chaostown police received

an anonymous tip that the incident was the result of a drug deal gone bad. (R. at 1.)

Detective Vincent Binger, the lead investigator on the case, began by

interviewing residents in the area of the shootings. (R. at 1.) Unfortunately, no one

had heard or seen anything that night. (R. at 1.) In fact, the only thing the residents

knew was that there had been “a large gathering” of young people at a New Year’s

Eve party near the lake, about 2 miles from where the shootings took place. (R. at

1.) Jessica Minder, known to the police department for her underage drinking and

marijuana possession arrests, was reportedly in attendance. (R. at 1–2.)

Detective Binger interviewed Minder two weeks after the shooting. (R. at 2.)

She admitted to attending the party and identified Kenny Bearson, Sandy Bearson,

and Robert Clark as others in attendance. (R. at 2.) Smith and Jones were not

present, as far as she could recall. (R. at 2.) Minder knew nothing about the

murders. (R. at 2.)

After Minder mentioned that she got a ride home from Kenny Bearson,

Detective Binger interviewed Bearson. (R. at 2.) Bearson admitted to being at the

party, but denied knowing anything about the shooting, though he knew the victims

from school. (R. at 2.) Detective Binger asked permission to enter Bearson’s home

and look around, but Bearson expressly denied him permission. (R. at 2.) Detective

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Binger later interviewed Robert Clark, who also admitted to attending the party but

denied knowledge of the shooting. (R. at 3.)

Over the next several months, Detective Binger attempted to re-contact the

witnesses in hopes of uncovering additional information. (R. at 3.) Clark did not

change his story, but reported running into Kenny Bearson weeks after the

shooting. (R. at 3.) Bearson had told Clark not to talk about the events of New

Year’s Eve to anyone, leading Clark to suspect that Bearson might have been

involved with the shooting. (R. at 3.)

Detective Binger also spoke with Jessica Minder again, who had moved to

another town. (R. at 3.) After seeing a poster announcing reward money for anyone

with information about the shooting, Minder spoke to Detective Binger. (R. at 3.)

Minder told him that she had lied when they last spoke. (R. at 3.) Though she was

slipping in and out of consciousness, she vaguely remembered Kenny stopping his

truck on the drive home, hearing some popping sounds. (R. at 3–4.) Minder claimed

that she moved away from Chaostown because she was afraid of Bearson after he

threatened her to stay quiet. (R. at 4.) After this conversation, Detective Binger

attempted to re-contact Bearson at his home. (R. at 4.)

After already being denied permission to enter Bearson’s home, Detective

Binger returned with three other officers. (R. at 2, 4.) The officers approached his

home to find the front door open, the screen door shut, and the smell of marijuana

coming from inside. (R. at 4.) They called out, and Caroline Bearson, Kenny

Bearson’s sister, opened the door. (R. at 5.) She told the officers that she lived three

3

hours away and was in Chaostown for chemotherapy treatments. (R. at 5.) She

stayed with Kenny only to recover from her treatment before embarking on her

three-hour drive. (R. at 5.) Caroline appeared groggy when she opened the door, and

she admitted to smoking medicinal marijuana as a part of her cancer treatment, for

which she had a legal prescription. (R. at 5.)

Caroline told the officers that Kenny was not home at the time (R. at 5.)

Still, Detective Binger asked to come in. (R. at 5.) She expressly denied him

permission to enter. (R. at 5.) Detective Binger asked to see Caroline’s medicinal

marijuana prescription, which she did not have with her. (R. at 5.) Detective Binger

then told Caroline that he would get a warrant to search the home. (R. at 5.) Only

then did Caroline yield to Detective Binger, allowing them to come in the house. (R.

at 5.) She did not give them permission to enter the Kenny’s bedroom or bathroom,

as she did not have permission to go there herself. (R. at 5.)

Detective Binger saw the burned marijuana cigarette in the living room

immediately upon entering the house. (R. at 5.) Still, he continued into the home.

(R. at 5.) Upon walking further into the house, he saw a receipt in plain view on the

kitchen table. (R. at 5.) It indicated that Kenny had pawned several rifles weeks

after the shooting, some of which were capable of shooting .30 caliber bullets. (R. at

5.) Detective Binger visited the pawn shop, but the rifles were no longer there. (R.

at 6.)

Bearson was charged in federal court with two counts of first degree murder.

(R. at 7.) He moved to suppress the pawn shop receipt as evidence at trial, but the

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trial court denied the motion. (R. at 7.) The only evidence presented at trial was the

receipt and the testimony of two of Bearson’s friends. (R. at 7.) Following conviction

on both counts, Bearson appealed to the United States Court of Appeals for the

Thirteenth Circuit. (R. at 7.)

Three days after Bearson filed his appeal, Detective Binger learned that

someone else, a Leopold Lara, Jr., had confessed to the crime. (R. at 7.) Shortly after

the murders, Deputy Laura Finster had tried to pull him over for speeding. (R. at 7–

8.) Instead of pulling over, Lara engaged her in a several mile chase, eventually

pulled into a residential driveway, and took off on foot. (R. at 8.) Apparently, he had

tried to shoot at Deputy Finster during the chase, but his friends had taken the gun

from him. (R. at 8.) When Deputy Finster finally caught up to him and placed him

under arrest, Lara, who was intoxicated, began to cry. (R. at 8.) He then “blurted

out” that he had killed Billy Smith and Sally Jones, and that he had used a .30

caliber rifle. (R. at 8.)

Instead of questioning Lara, Deputy Finster, who happens to be Lara’s niece,

told him to be quiet and to stop talking. (R. at 8.) She did not handcuff him, nor did

she take him to jail. (R. at 8.) She simply took him home and gave him a citation for

speeding. (R. at 8.) She never wrote a police report. (R. at 8.)

Immediately after learning of Lara, Jr.’s confession, Detective Binger

interviewed Lara in the hospital, where he was awaiting a liver transplant. (R. at

9.) Lara admitted that he had been arrested by Deputy Finster, but recanted his

confession. (R. at 9.) A week later, he died. (R. at 9.)

5

Upon learning of this confession, Bearson moved for a new trial under Rule

33(b)(1) of the Federal Rules of Criminal Procedure, based upon newly acquired

evidence. (R. at 9.) The parties stipulated that Lara was unavailable pursuant to

Fed. R. Evid. 804. (R. at 9.) The trial court denied the motion, ruling that the

confession was inadmissible hearsay that would not have affected the outcome of

Kenny’s trial. (R. at 9.)

Bearson appealed, and the two issues were consolidated on appeal. (R. at 9.)

The Thirteenth Circuit affirmed, holding that the search and seizure at Bearson’s

home was valid as his sister consented to the search and the receipt was in plain

view; and that the confession was inadmissible hearsay because it lacked adequate

indicia of trustworthiness, and would not have affected the outcome of the trial. (R.

at 9–10.) These holdings form the basis of this appeal. (R. at 10.)

SUMMARY OF ARGUMENT

This is a case about the fundamental protections of the Constitution’s Fourth,

Fifth and Sixth Amendments. The decision below is contrary to the Court’s previous

rulings, which establish clear rules protecting the guarantees of these amendments.

The decision deviates from traditional constitutional principles, threatening

individual rights held by all citizens of the United States. It must be reversed.

The court below erred in finding that the search and seizure that occurred at

Kenny Bearson’s home was not unlawful. The Fourth Amendment protects against

unreasonable search and seizures without a warrant. The police officers at the

scene lacked valid consent to enter and search the home without a warrant. They

obtained Caroline Bearson’s consent through coercion. Caroline Bearson could not

6

give valid consent because she was third party that was not a co-inhabitant or co-

tenant of the home. The seizure of the pawn shop receipt was unlawful because the

receipt was not immediately incriminating.

The court also erred in finding that Leopold Lara, Jr.’s confession was

inadmissible hearsay. The Constitution guarantees criminal defendants the right to

present a complete defense. Lara’s confession was trustworthy and, if believed by

the jury, would necessarily have exculpated Bearson. There was, moreover, a

reasonable probability that, had the confession been admitted, the jury would not

have found Bearson guilty beyond a reasonable doubt.

ARGUMENT

I. THE CHAOSTOWN POLICE CONDUCTED AN UNLAWFUL AND

UNREASONABLE SEARCH AND SEIZURE AT BEARSON’S HOME

WHEN THEY ENTERED AND SEIZED EVIDENCE WITHOUT A

WARRANT

The Fourth Amendment to the Constitution guarantees the “right of the

people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures.” U.S. Const. amend. IV. Police can conduct a

search only where a warrant is issued “upon probable cause, supported by oath or

affirmation, and particularly describing the place to be searched.” Id. Unlawfully

obtained evidence should be excluded from use in trial. Mapp v. Ohio, 367 U.S. 643,

648, 655 (1961). These principles “apply to all invasions on the part of the

government and its employees of the sanctity of a man’s home and the privacies of

life” in order to protect against “the invasion of his indefeasible right of personal

security, personal liberty and private property.” Id. at 646–647 (quoting Boyd v.

7

United States, 116 U.S. 616, 630 (1886)). This is especially true when one’s home is

the subject of a search: “In none is the zone of privacy more clearly defined than

when bounded by the unambiguous physical dimensions of an individual’s home.”

Payton v. New York, 445 U.S. 573, 589 (1980).

It is a “basic principle of Fourth Amendment law” that searches and seizures

inside a home without a warrant are presumptively unreasonable. Payton, 445 U.S.

at 586. A warrantless search is only reasonable when it meets an exception to the

Fourth Amendment’s warrant requirement. Kentucky v. King, 131 S. Ct. 1849, 1857

(2011). These exceptions include searches where consent is granted and evidence in

plain view of police officers during a lawful search, if the conditions of each

exception are met. Ohio v. Robinette, 519 U.S. 33, 40 (1996); Horton v. California,

496 U.S. 128, 137 (1990).

The Thirteenth Circuit upheld the trial court’s refusal to exclude the evidence

obtained at Kenny Bearson’s home after a search and seizure, on the grounds that

his sister gave consent and the pawn shop receipt was in plain view. (R. at 9.) The

court erred in upholding these actions as a lawful search and seizure because the

officers lacked valid consent to enter the home and plain view doctrine did not

authorize the seizure of the evidence.

A. The Chaostown police officers did not have valid consent to search

Bearson’s home.

Consent to search can sometimes serve as an exception to the Fourth

Amendment warrant requirement. Robinette, 519 U.S. at 40. But, in this case, the

police officers at the scene lacked valid consent to conduct a warrantless search of

8

Kenny Bearson’s home. Caroline Bearson’s consent to search the home was not

voluntarily given, and Caroline lacked the capacity as a third party to give valid

consent to search Kenny’s home.

1. Caroline Bearson’s consent to a search of the home was not

voluntary

The police officers at the scene, particularly Detective Binger, coerced

Caroline Bearson into giving consent to search the home. While a warrantless

search may be permissible if consent is given, voluntariness of consent is a

necessary element: “The Fourth Amendment test for a valid consent to search is

that the consent be voluntary.” Robinette, 519 U.S. at 40. Coercion is never a valid

means of obtaining consent. United States v. Vongxay, 594 F.3d 1111, 1119 (9th Cir.

2010); Bumper v. North Carolina, 391 U.S. 543, 550 (1968). This holds true whether

the coercion is express or implied, no matter how subtle. Schneckloth v.

Bustamonte, 412 U.S. 218, 228 (1973). Whether consent was voluntary or obtained

through coercion “is a question of fact to be determined from all the circumstances.”

Robinette, 519 U.S. at 40. The circumstances to consider include both the

characteristics of the accused and the details of the interrogation,” particularly the

“possibly vulnerable subjective state of the person who consents.” Schneckloth, 412

U.S. at 226, 229. The Ninth Circuit developed a set of factors to consider in

evaluating the circumstances of a warrantless search, including whether the officers

indicated that a search warrant could be obtained. Vongxay, 594 F.3d at 1120.

The Court held that consent was invalid on the grounds of coercion in

Bumper v. North Carolina. Bumper, 391 U.S. at 550. Bumper lived with his

9

grandmother, Hattie Leath. Id. at 546. The police arrived at the house in search of

Bumper, finding only Leath home. Id. The police falsely claimed to have a warrant

to search the home. Id. Only upon this announcement did Leath permit the officers

to enter her home, not knowing that her grandson had been charged with a crime.

Id. The Court found that Leath’s consent to search the home was coerced, holding

that the government’s burden to obtain voluntary consent “cannot be discharged by

showing no more than acquiescence to a claim of lawful authority.” Id. at 548–49.

However, the Court upheld a warrantless search and seizure in Schneckloth

v. Bustamonte, finding that the defendant’s consent was sufficiently voluntary.

Schneckloth, 412 U.S. at 249. After a police officer pulled over the defendant and his

friends, the officer asked one of the occupants of the car, whose brother owned the

vehicle, if he could conduct a search. Id. at 220. The occupant responded “yes,” and

the officer later described the interaction as “congenial.” Id. The California Court of

Appeal for the First Appellate District, in affirming the defendant’s conviction,

found that the occupant’s consent to a search, after simply being asked if a search

was okay, was freely given and not the result of coercion. Id. at 220–21. The Court

affirmed the California appellate court’s finding. Id. at 249.

Detective Binger coerced Caroline Bearson into giving her consent to search

the home. When Bearson opened the door, she was groggy. (R. at 5.) It is likely that

she was under the influence of marijuana at the time, which she could use legally

with a medical prescription. (R. at 5.) In this unclear state of mind, not knowing

that her brother was a suspect in a murder investigation, she spoke with the

10

Detective Binger at the door as his fellow officers stood behind him. (R. at 5.) She

then expressly denied them permission to enter the home. (R. at 5.) At this point,

Detective Binger informed her of his ability to get a warrant, coercing her into

giving consent to enter the home. (R. at 5.) This was not a case of a “congenial”

interaction; Bearson allowed the police officers inside only after being threatened

with a warrant. (R. at 5.) Bearson’s acquiescence to the officer’s display of authority

is similar to Bumper, where the Court found that the consent was invalid. After

first refusing entry, Bearson submitted to Detective Binger’s display of lawful

authority. (R. at 5.) Her consent was not voluntary. As a result, Caroline Bearson’s

consent to search the home was not valid, resulting in an unlawful and

unconstitutional search and seizure.

2. Caroline Bearson was not capable of giving valid consent to search

Kenny Bearson’s home because she was not a co-inhabitant of the

home.

In particular situations, the Court has allowed third parties to provide

consent to police searches. A third party who shares common authority or is

reasonably believed to share such authority over the premises can give valid

consent. United States v. Matlock, 415 U.S. 164, 171 (1974); Illinois v. Rodriguez,

497 U.S. 177, 188 (1990). But the Court noted in Georgia v. Randolph that “a

solitary co-inhabitant may sometimes consent to a search of shared premises,” and

“shared tenancy” is key to the rule. Georgia v. Randolph, 547 U.S. 103, 111 (2006)

(emphasis added).

These types of consent cases turn on the specific facts of the occupancy

arrangement. In Fernandez v. California, 134 S. Ct. 1126, 1130 (2014), “consent was

11

provided by an abused woman well after her male partner had been removed from

the apartment they shared.” The woman, Rojas, was a co-inhabitant of the

apartment, having equal authority over the premises as the defendant, Fernandez.

Id. The police arrested Fernandez after he denied consent to search the apartment,

relying on the suspicion that he had abused Rojas (who bore several injuries and

fresh blood on her clothing). Id. One hour after that arrest, the officers returned to

the apartment and received both oral and written consent from Rojas, who was not

under duress or coercion at the time. Id. The Court found that Rojas’s consent was

valid, given her joint ownership of the property. Id. at 1137. These facts are similar

to those of Illinois v. Rodriguez, where an abused woman granted police officers

permission to search her apartment, jointly owned and occupied with the defendant.

Rodriguez, 497 U.S. at 179. As in Fernandez, the Court found her consent to be

valid. Id. at 188.

The facts of the case before us differentiate it from the precedent in

Rodriguez and Fernandez. Caroline Bearson was not a co-inhabitant or joint tenant

of Kenny Bearson’s home. (R. at 5.) She was a mere visitor, who was staying only to

recover from her chemotherapy before driving three hours home. (R. at 5.) She did

not live with Kenny. (R. at 5.) She had no ownership interest in the home. (R. at 5.)

The fact that she did not have access to Kenny’s bedroom or bathroom further

evinces her status as a visitor and nothing more. (R. at 5.) The officers could not

have had a reasonable belief that she was a co-inhabitant or co-tenant because she

explicitly told them otherwise. (R. at 5.) Detective Binger also knew that the sole

12

owner, Kenny, had previously denied consent to search his home. (R. at 2.) Because

Caroline was neither a co-inhabitant nor a co-tenant, she lacked the capacity to give

valid consent to search the home; thus, the officers’ search of Kenny Bearson’s home

was unlawful and violated the Fourth Amendment.

B. Despite the pawn shop receipt being in plain view, the receipt’s lack of

immediately incriminating character prevented the police officers from

seizing it.

Detective Binger unlawfully seized the pawn shop receipt when he searched

Kenny Bearson’s home. Police officers can sometimes seize evidence that is in plain

view during a warrantless search, but only if they are lawfully in a position to view

the evidence, the incriminating character of the evidence is “immediately apparent,”

and the officers have a “lawful right to access the object.” Minnesota v. Dickerson,

508 U.S. 366, 376 (1993); Horton, 496 U.S. at 137; Arizona v. Hicks, 480 U.S. 321,

326 (1987).

The facts of cases where the Court invoked the plain view doctrine illustrate

this rule. The Court upheld seizure of weapons that were in plain view in the

petitioner’s home in Horton v. California only because the officers conducted the

search pursuant to a valid warrant and the incriminating nature of the weapons

was readily apparent. Horton, 496 U.S. at 142. The officers in Horton were

investigating an armed robbery, and the weapons in plain view included an Uzi

machine gun, a .38 caliber revolver, and two stun guns. Id. at 131. Their connection

to the crime was immediately apparent. Id.

In contrast, the Court found the search and seizure in Arizona v. Hicks to be

invalid. Hicks, 480 U.S at 329. The police seized stolen stereo equipment, despite

13

executing a warrant for other evidence. Id. at 323. This seizure was not justified by

the plain view doctrine because the incriminating nature of the stereo equipment

was not readily apparent. Id. at 326. The officers were only able to conclude that the

equipment was stolen after further investigation and a separate search—moving

the equipment and recording their serial numbers. Id. at 323. Here, the Court

clarifies that the reasonable suspicion is not sufficient to satisfy the plain view

doctrine. Id. at 326. The police officers must obtain probable cause through the

immediately apparent incriminating character of the evidence, rather than

reasonable suspicion. Id. at 328. That the evidence came into the officer’s plain view

“alone cannot supplant the requirement of probable cause.” Id. at 327.

The evidence seized at Kenny Bearson’s home does not satisfy the plain view

test. In addition to the police officers unlawfully being in view of the evidence

during a warrantless search, the incriminating nature of the evidence was not

immediately apparent. The evidence seized from Bearson’s home was a pawn shop

receipt. (R. at 5.) There is nothing facially incriminating about a receipt. Detective

Binger was only able to determine that the receipt was even remotely related to his

investigation through further examination of the receipt. (R. at 5.) The receipt in

this case is more like the stereo equipment in Hicks and less like the guns in

Horton. A receipt does not have the immediately evident incriminating character

that an Uzi machine gun, a .38 caliber revolver, and two stun guns have. Detective

Binger’s further investigation into the receipt is comparable to the officers in Hicks

moving the stereo equipment and recording the serial numbers. As a result,

14

Detective Binger’s warrantless seizure of the receipt was not authorized by the

plain view doctrine and violated the Fourth Amendment.

II. BEARSON’S CONSTITUTIONAL RIGHT TO PRESENT A COMPLETE

DEFENSE WAS VIOLATED WHEN THE TRIAL COURT EXCLUDED A

THIRD-PARTY CONFESSION WHICH WAS RELIABLE AND CRITICAL

TO BEARSON’S DEFENSE, AND WHICH PROBABLY WOULD HAVE

AFFECTED THE OUTCOME OF THE CASE

The Court of Appeals for the Thirteenth Circuit improperly affirmed the

district court’s ruling that Leopold Lara, Jr.’s confession was inadmissible hearsay.

The confession was not only trustworthy, but also critical to Bearson’s defense.

Moreover, the confession probably would have affected the outcome of the case. This

Court should therefore reverse the decision of the court below.

The Constitution guarantees criminal defendants “‘a meaningful opportunity

to present a complete defense.’” Holmes v. South Carolina, 547 U.S. 319, 324 (2006)

(quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)). That opportunity includes

the right to present exculpatory evidence. See Washington v. Texas, 388 U.S. 14, 19

(1967). This right is not unlimited. State and federal rulemakers have “broad

latitude . . . to establish rules excluding evidence from criminal trials.” United

States v. Scheffer, 523 U.S. 303, 308 (1998). Trial judges enjoy a similar latitude.

Crane, 476 U.S. at 689–690 (noting that the Constitution permits judges “to exclude

evidence that is ‘repetitive ..., only marginally relevant’ or poses an undue risk of

‘harassment, prejudice, [or] confusion of the issues.’” (quoting Delaware v. Van

Arsdall, 475 U.S. 673, 679 (1986))). But under certain circumstances the exclusion

of exculpatory evidence is constitutionally impermissible.

15

This Court has identified at least three such circumstances: (1) where the

evidence bears “persuasive assurances of trustworthiness” and is “critical” to the

defense, Chambers v. Mississippi, 410 U.S. 284, 302 (1973); (2) where the

restrictions are “arbitrary or disproportionate to the purposes they are designed to

serve,” Rock v. Arkansas, 483 U.S. 44, 55–6 (1987); and (3) where there is a

“reasonable probability” that the defendant’s newly discovered evidence would have

affected the outcome of the trial. Pennsylvania v. Ritchie, 480 U.S. 39, 57 (1987).

Any one of these violations would constitute sufficient grounds for reversal. Here we

find all three. Accordingly, the trial court’s ruling violated petitioner’s constitutional

right to a complete defense, and this Court should reverse the decision of the

Thirteenth Circuit.

A. Bearson had a right to introduce the confession under Chambers because

it bore substantial assurances of trustworthiness and was critical to

Bearson’s defense

A criminal defendant has a constitutional right to present exculpatory

evidence where the evidence bears substantial assurances of trustworthiness and is

critical to his defense. Chambers, 410 U.S. at 302; Crane, 476 U.S. at 690; Green v.

Georgia, 442 U.S. 95, 97 (1979). This right extends to out-of-court statements, such

as Leopold Lara, Jr.’s confession, notwithstanding the hearsay rule. Chambers, 410

U.S. at 302. Indeed, “[f]ew rights are more fundamental than that of an accused to

present witnesses in his own defense.” Id. Thus, where a defendant’s constitutional

rights are implicated, as they are here, “the hearsay rule may not be applied

mechanistically to defeat the ends of justice.” Id. (emphasis added).

16

Here, the lower court did just that. The out-of-court statement Bearson

sought to introduce bore substantial assurances of trustworthiness and was critical,

if not absolutely necessary, to his defense. By ignoring the many indications that

the confession was both trustworthy and critical to Bearson’s defense, the lower

court violated his constitutional right to present a complete defense, and committed

reversible error.

1. The confession bore substantial assurances of trustworthiness

In determining whether the proffered out-of-court statement bears

substantial assurances of trustworthiness, this Court has engaged in highly case-

specific inquiries. See Chambers, 410 U.S. at 302 (confining its holding to the facts

and circumstances of the case); Green, 442 U.S. at 97. As a result, there is no

bright-line rule for making such determinations. Nevertheless, the Court has

repeatedly looked to certain factors. In particular, this Court has considered

whether the out-of-court statement was: (1) made spontaneously to a close friend

shortly after the murder, (2) corroborated by other evidence presented at trial, and

(3) against the declarant’s interest. See Chambers, 410 U.S. at 300–1; Green, 442

U.S. at 97.

This Court applied this multi-factor analysis in Chambers, where the

defendant sought to introduce evidence that a third person, McDonald, had

confessed to the murder in private conversations with three friends. Chambers, 410

U.S. at 289. All three witnesses would have testified that McDonald had confessed

shortly after the murder—on the night of the shooting, Id. at 292, the morning

after, Id. at 292, and a week later, Id. at 293. “[E]ach of McDonald’s confessions

17

[thus, including the one made a full week after the shooting] . . . were made

spontaneously to a close acquaintance shortly after the murder had occurred.” Id. at

300 (emphasis added); see Green, 442 U.S. at 96–7 (finding that the declarant had

“made his statement spontaneously to a close friend” where “[the declarant] had

confided to him that he had killed [the victim]”). McDonald’s confessions were also

corroborated by other evidence in the case, including proof of his prior ownership of

a .22 caliber revolver, the same type of gun that had been used in the shooting.

Chambers, 410 U.S. at 300, 286. Moreover, given the self-incriminatory nature of

McDonald’s statements, they were “unquestionably against interest.” Id. at 300–1

(emphasis added). Indeed, McDonald “stood to benefit nothing” by making such

statements, and “must have been aware of the possibility that disclosure would lead

to criminal prosecution.” Id. at 301; see Green, 442 U.S. at 97.

The facts of Chambers and Green are materially indistinguishable from those

here. Leopold Lara, Jr. made his confession (a) spontaneously, (b) to a close friend,

and (c) shortly after the murders. The confession was not planned or premeditated

in any way. It was made impulsively, in the immediate aftermath of a high-speed

chase. (R. at 8.) Deputy Finster said nothing to suggest that Lara might have been

responsible for the murders, nor did she even mention the murders. (R. at 8.)

Rather, Lara, Jr., who had begun to cry, simply “blurted out” that he was the one

who “killed those kids.” (R. at 8.) Moreover, Deputy Finster and Lara are close

friends. Deputy Finster is not just any police officer; she is Lara’s niece. (R. at 8.) In

18

fact, she knows him well enough to know that he has problems with his blood

pressure. (R. at 8.)

Lara, Jr. also made his confession shortly after the murders. Although, due to

Deputy Finster’s failure to write a police report of the incident, we cannot know the

exact date of the confession, we can nevertheless infer from the record that Lara

made the statement shortly after the murders. (R. at 8.) Deputy Finster told

Detective Binger that the incident had occurred “several months ago” (and after the

homicides) a few days after Bearson filed his appeal. (R. at 7.) Furthermore,

Detective Binger spent a little more than three months interviewing witnesses, (R.

at 2–3.); the trial took only three days, (R. at 7.); and the appeal—which was timely

filed pursuant to Rule 4(b)(1)(A)(i) of the Federal Rules of Appellate Procedure—

must have been filed no more than 14 days of the district court judgment. Thus,

Lara, Jr.’s confession could not have been made long after the murders.

The confession was corroborated by other evidence presented at trial. In

particular, Lara, Jr. stated that he had used a .30 caliber rifle (R. at 8.) At trial, the

prosecution presented evidence that both victims died of gunshot wounds from a .30

caliber rifle. (R. at 7.)

Most importantly, Lara, Jr.’s confession was against his interest. Like the

declarants in Chambers and Green, Lara, Jr. stood to gain nothing from admitting

responsibility for the murders. Indeed, as this Court stated in Chambers, “he must

have been aware” that he was exposing himself to criminal liability. Chambers, 410

U.S. at 301.

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2. The confession was critical to Bearson’s defense

The trial court must also consider the probative value of the evidence. Where

the evidence is “critical” to the defense, an exclusionary ruling may violate the

defendant’s right to present a complete defense. Chambers, 410 U.S. at 302 (holding

that petitioner had been denied a fair trial in part because of “the exclusion of this

critical evidence” (emphasis added)). Subsequent cases have confirmed the

requirement set forth in Chambers. See Green, 442 U.S. at 97; Crane, 476 U.S. at

691 (finding a denial of due process where the evidence excluded by the trial court

was “all but indispensable to any chance of [petitioner’s defense] succeeding”

(emphasis added)).

This Court has generally found evidence to be critical to the defense where

the defendant is “effectively disabled from answering the one question every

rational juror needs answered.” Id. at 689; see also Chambers, 410 U.S. at 302;

Green, 442 U.S. at 97. Indeed, in Chambers, as in this appeal, the evidence pointed

to a single person committing the murder. Chambers, 410 U.S. at 297. Thus, the

principal issue at trial was the perpetrator’s identity. Id. The trial court’s

mechanistic application of the hearsay rule in excluding evidence that someone

other than the defendant committed the murder therefore deprived the defendant

any “meaningful opportunity to present a complete defense.” Crane, 476 U.S. at

690.

The out-of-court statement Bearson sought to introduce was at least as

critical to his defense. The evidence presented by the prosecution at trial excluded

the theory that more than one person participated in the shooting. (R. at 7.) The

20

identity of the shooter was therefore the principal issue at trial. Neither the

prosecution nor the defense presented any evidence at trial that any third person

committed the murders. (R. at 7.) As a result, evidence that a third person, namely,

Leopold Lara, Jr., had in fact confessed to the murders could not possibly be more

critical to Bearson’s defense. By excluding this evidence, the trial court “effectively

disabled [Bearson] from answering the one question every rational juror needs

answered”: whether someone other than the defendant could have shot those kids.

Crane, 476 U.S. at 691.

B. The lower court’s application of Fed. R. Evid. 804(b)(3) was arbitrary and

disproportionate to the purpose it was designed to serve, and thus

reversal is required under Scheffer

Even if this Court determines that Chambers does not apply, the lower

court’s ruling nonetheless violated Bearson’s right to present a defense under

Scheffer, thus warranting reversal. In order to prevail under Scheffer, a defendant

must show that the restriction (a) is “‘arbitrary’ or ‘disproportionate to the purposes

[it is] designed to serve’” and (b) “infringe[s] upon a weighty interest of the accused.”

Scheffer, 523 U.S. at 308 (quoting Rock, 483 U.S. at 56). This standard applies not

only to rules, see Rock, 483 U.S. at 62 (striking down Arkansas’ per se rule

excluding all hypnotically refreshed testimony), but also to applications of rules, see

Chambers, 410 U.S. at 300; Malinowski v. Smith, 509 F.3d 328, 335–6 (7th Cir.

2007) (finding the trial court’s exclusionary ruling disproportionate to the purpose

the exclusion was designed to serve); Greene v. Lambert, 288 F.3d 1081, 1090–1

(9th Cir. 2002) (finding that the exclusion of any evidence of defendant’s dissociative

identity disorder “disproportionately infringed upon weighty interests”). Indeed, as

21

this Court explained in Chambers, when a state rule of evidence conflicts with the

right to present witnesses, the rule may “not be applied mechanistically to defeat

the ends of justice.” Id. at 302 (emphasis added).

Scheffer thus requires an inquiry into the purpose of the evidentiary

restriction. Here the restriction was the trial court’s ruling under Fed. R. Evid.

804(b)(3)—in particular, its application of subsection (B), which requires

“corroborating circumstances that clearly indicate [the statement’s]

trustworthiness.” The primary purpose of the Rule is to avoid fabrication. See

Williamson v. United States, 512 U.S. 594, 599 (1994) (stating that the Rule “is

founded on the commonsense notion that reasonable people, even reasonable people

who are not especially honest, tend not to make self-inculpatory statements unless

they believe them to be true”). More specifically, the corroboration requirement in

subsection (B) is aimed at preventing fabrication. See United States v. Henderson,

736 F.3d 1128, 1130–1 (7th Cir. 2013); United States v. Brainard, 690 F.2d 1117,

1124 (4th Cir. 1982); United States v. Guillette, 547 F.2d 743, 754 (2nd Cir. 1976).

This position finds strong support in the advisory committee notes, which mention

that that “[t]he requirement of corroboration should be construed in such a manner

as to effectuate its purpose of circumventing fabrication.” Fed. R. Evid. 804 advisory

committee’s note.

The trial court’s exclusion of Leopold Lara, Jr.’s confession was arbitrary and

disproportionate to the purpose Fed. R. Evid. 804(b)(3) is designed to serve. Here

there is no risk of fabrication. He made the confession spontaneously to a close

22

friend shortly after the murders. (R. at 8.) See United States v. Lindsey, 702 F.3d

1092, 1102 (8th Cir. 2013) (finding that corroborating circumstances include

“whether the statement was made spontaneously, . . . the timing of the

declaration[,] and . . . the relationship between the speaker and the witness”). The

statements were made voluntarily. (R. at 8.) See United States v. Jackson, 540 F.3d

578, 589 (7th Cir. 2008). The statement that he had used a .30 caliber rifle was

consistent with and corroborated by evidence presented at trial. (R. at 7–8.) See

Henderson, 736 F.3d at 1131 (“although not required, corroboration of the content of

the hearsay statement may indicate that the statement is trustworthy”). The

confession was unquestionably against interest, and he had no incentive to fabricate

a self-incriminating statement to exculpate a complete and total stranger. See

United States v. Garcia, 986 F.2d 1135, 1140 (7th Cir. 1993) (stating that “if the two

involved parties do not have a close relationship, one important corroborating

circumstance exists”). Similarly, Lara was not attempting to “curry favor with

authorities.” Id. at 1140.

The trial court’s ruling therefore violated Bearson’s right to present a defense

under Scheffer because its application of Fed. R. Evid. 804(b)(3) was arbitrary and

disproportionate to the Rule’s purpose of circumventing fabrication.

C. Lastly, the trial court’s ruling was prejudicial to Bearson because the

evidence probably would have affected the outcome of the trial

Lastly, the lower court erred in denying Bearson’s motion for a new trial

because he satisfied the materiality requirement set forth in United States v.

Bagley, 473 U.S. 667, 682 (1985) (“Bagley standard”). This requirement essentially

23

amounts to a showing of prejudice. In order to introduce newly discovered evidence,

a defendant must show that “‘there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have been

different.’” Ritchie, 480 U.S. at 57 (quoting Bagley, 473 U.S. at 682 (opinion of

Blackmun, J.) (emphasis added)). The reviewing court, in making this

determination, must consider the omitted evidence “in light of the totality of the

circumstances,” that is, in the context of the entire record. Bagley, 473 U.S. at 683.

This standard is not a particularly difficult one to meet. As this Court has

explained, a reasonable probability is “‘a probability sufficient to undermine

confidence in the outcome.’” Ritchie, 480 U.S. at 57 (quoting Bagley, 473 U.S. at 682

(opinion of Blackmun, J.)).

Courts applying the Bagley standard have not found it difficult to find a

reasonable probability, and indeed have done so where the evidence was less than

necessary to the defense. See United States v. Shaffer, 789 F.2d 682, 688–9 (9th Cir.

1986) (finding that the nondisclosure of evidence affecting the credibility of a

witness whose testimony was in part corroborated by other testimony undermined

confidence in the outcome of the defendant’s trial); United States v. Perdomo, 929

F.2d 967, 971–2 (3rd Cir. 1991) (finding that nondisclosure of evidence affecting the

credibility of the prosecution’s key witness created a reasonable probability that the

result of the proceedings would have been different).

More importantly, one circuit has applied the Bagley standard to a fact

pattern materially indistinguishable from the one here. In United States v.

24

Robinson, 39 F.3d 1115, 1116 (10th Cir. 1994), the defendant, convicted of

distributing cocaine, moved for a new trial based on newly disclosed evidence that

one of the key prosecution witnesses was the drug courier. The district court

granted the motion, and the government appealed. Id. On appeal, the Tenth Circuit,

applying the Bagley standard, affirmed the district court’s finding of materiality,

concluding that “[e]vidence that [the witness] retrieved the drugs which were stored

in his home would necessarily have buttressed [the defendant’s] argument to the

jury.” Id. at 1119 (emphasis added). Indeed, “the evidence does not simply impeach

[the witnesses], but instead exculpates [the defendant] by implicating [one of the

witnesses].” Id.

The trial court erred in ruling the confession inadmissible hearsay because,

under the Bagley standard, the confession undermines confidence in Bearson’s

conviction. The evidence presented at trial excluded the possibility of more than one

shooter. (R. at 7.) Thus, evidence that someone else committed the murders would

necessarily have buttressed Bearson’s argument to the jury. Moreover, like the

information withheld by the government in Robinson, the evidence here exculpates

Bearson by implicating Lara, Jr., and so clearly undermines confidence in the

outcome.

Viewing the proffered evidence in the context of the entire record only

reinforces this conclusion. Neither of the two prosecution witnesses actually saw

who shot the victims. Minder, who was so intoxicated she was losing consciousness,

was behind Kenny’s truck when the shots were fired. (R. at 4.) Clark was also at the

25

rear of the truck, making sure that Minder was O.K. (R. at 6.) In fact, it was so dark

outside he could not make out anything more than a few feet away. (R. at 6.)

Immediately after the shots were fired, Minder ran off, (R. at 4.), and Clark jumped

back into the car. (R. at 6.) The only other evidence presented at trial was the pawn

shop receipt. (R. at 7.) Thus, “the verdict is already of questionable validity, [and so]

additional evidence of relatively minor importance might be sufficient to create a

reasonable doubt.” United States v. Agurs, 427 U.S. 97, 113 (1976). The importance

of the confession is, of course, anything but minor. At the very least, it creates a

reasonable probability that, absent the omission, the jury would have found a

reasonable doubt respecting guilt.

Thus, under any of the standards outlined above, Bearson’s constitutional

right to present a complete defense was violated.

CONCLUSION

For the foregoing reasons, the decision of the Court of Appeals for the

Thirteenth Circuit should be REVERSED.

Respectfully submitted,

Team No. 9

Counsel for Petitioner February 27, 2015