Team 16

No. 16- ______________________________________________________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

FEBRUARY TERM, 2016

GARY WALSH, Petitioner,

v.

STATE OF SETONIA Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF SETONIA

BRIEF FOR RESPONDENT

Team 16 Counsel for the Respondent

i

QUESTIONS PRESENTED

I. Whether a state can criminalize the refusal of a warrantless search when the state

strictly limits that criminalization to a recognized exception of the warrant requirement?

II. Whether the Sixth Amendment’s Speedy Trial Clause applies to the sentencing of

the convicted after a verdict has been rendered and the purposes of a speedy trial are no longer served?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED……………………………………………………………………..i TABLE OF AUTHORITIES……………………………………………………………………ii OPINIONS BELOW……………………………………………………………………………..1 CONSTITUTIONAL PROVISIONS…………………………………………………………...1 STANDARD OF REVIEW……………………………………………………………………...1 STATEMENT OF THE CASE………………………………………………………………….1

A. Statement of Facts………………………………………………………………..1

B. Procedural History……………………………………………………………….3 SUMMARY OF THE ARGUMENT…………………………………………………………...4 ARGUMENT…………………………………………………………………………………….6 I. STATES MAY CRIMINALIZE AN ARRESTEE'S REFUSAL TO TAKE A

CHEMICAL TEST FOR THE PURPOSES OF RECORDING BLOOD ALCOHOL CONTENT BECAUSE SUCH SEARCHES ARE PER SE REASONABLE UNDER THE SEARCH INCIDENT TO ARREST WARRANT EXCEPTION AND NO EXEMPTION APPLIES.………………………………………………………………6

A. States Can Criminalize Refusal of Chemical Test Searches Incident to Lawful

Arrests Because Searches Incident to Lawful Arrests are Per Se Reasonable Intrusions Upon the Fourth Amendment.……………………………………..7

B. This Court's Reasoning in Chimel, Gant, and Riley Upholds the Application

of the Search Incident to Lawful Arrest Exception to Chemical Tests in the DWI Context.…………………………………………………………………….9

C. This Court's Ruling in McNeely Recognizes that a Warrantless Chemical

Test is Reasonable Under the Per Se Reasonableness of a Search Incident to a Driving While Impaired Arrest and That Implied Consent Laws are Appropriate Legal Tools To Effectuate State Enforcement of Drunk Driving Laws.……………………………………………………………………………12

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II. THE SIXTH AMENDMENT’S RIGHT TO A SPEEDY TRIAL DOES NOT EXTEND TO POST-CONVICTION DELAYS BECAUSE THE SENTENCING PROCESS HAS A DISTINCTIVE PROCEDURE AND PURPOSE THAT IS BEST SUPPORTED THROUGH OTHER CONSTITUTIONAL REMEDIES.………….16

A. Sentencing has Only Been Considered an Extension of Trial In Dicta for an Unrelated Purpose and Holds No Binding Authority.………………………..17

B. The Characteristics Of the Sentencing Process are Distinct From the

Qualities That Define a Trial and These Differences Have Been Exemplified in Various Rules and Laws Throughout History.…………………………….18

C. An Expansive Reading of the Speedy Trial Clause Does Not Support Its

Purposes of Protecting the Accused Person Preparing For Trial.……………………………………………………………………………..20

D. The Due Process Clause Provides the Appropriate Avenue of Relief Because

it Recognizes Both the Interests of the Convicted Person and the Public Through More Moderate Remedies.…………………………………………..22

CONCLUSION…………………………………………………………………………………24

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TABLE OF AUTHORITIES

UNITED STATES SUPREME COURT CASES

Alleyne v. United States, 133 S.Ct. 2151 (2013)………………………………………………...19

Apprendi v. New Jersey, 530 U.S. 466 (2000)……………………………………………..……21

Arizona v. Gant, 556 U.S. 332 (2009)………………………………………...……8, 9, 10, 11, 12

Barker v. Wingo, 407 U.S. 514 (1972)…………………………………………………...…passim

Bozza v. United States, 330 U.S. 160 (1947)…………………………………………………....23

Brigham City v. Stuart, 547 U.S. 398 (2006)……………………………….…….………………6

Camara v. Municipal Court of San Francisco, 387 U.S. 523 (1967)…………………….……..6, 9

Chimel v. California, 395 U.S. 752 (1969)……………………..………………………..6, 7, 9, 12

In re Winship, 397 U.S. 358 (1970)………………………………………………………...…....19

Katz v. United States, 389 U.S. 347 (1967)……………………………………………………..7

Klopfer v. North Carolina, 386 U.S. 213 (1967)……………………………………………..….21

Maryland v. King, 133 S.Ct. 1958 (2013). ………………………………………………..12, 13

Missouri v. McNeely, 133 S.Ct. 1552 (2013)……………………………………………….passim

New York v. Class, 475 U.S. 106 (1986)……………………………………………..…………15

Pollard v. United States, 352 U.S. 354 (1957)…………………………………………….....17, 18

Riley v. California, 134 S.Ct., 2473 (2014)…………………………………..……………..passim

Rogers v. United States, 422 U.S. 573 (1994)………………………………………………...…19

Shannon v. United States, 512 U.S. 573 (1994)………………………………………………....19

Strunk v. United States, 412 U.S. 434 (1973)…………………………………..……………16, 22

United States v. Lovasco, 431 U.S. 783 (1977)…………………………………………...…16, 23

United States v. Robinson, 414 U.S. 218 (1973)…………………………………………6, 7, 8, 9

United States v. Sprague, 282 U.S. 716 (1931)……………………………………………….....18

Weeks v. United States, 232 U.S. 383 (1914)……………………………...……………………..7

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UNITED STATES CIRCUIT COURT CASES

Burkett v. Cunningham, 826 F.2d 1208 (3d 1987)………………………………..................…..23

Burkett v. Fulcomer, 951 F.2d 1431 (3d Cir. 1991)……………………………………………..22

Perez v. Arizona, 793 F.2d 249 (10th Cir. 1986)……………………………………………..….21

United States v. Reid, 929 F.2d 990 (4th Cir. 1991)……………………………………….……12

United States v. Sanders, 452 F.3d 572 (6th Cir. 2006)…………………………………………21

STATE SUPREME COURTS CASES McNultry v. Curry, 42 Ohio St.2d 341 (Ohio 1975)…………………………………………..15

People v. Harris, 170 Cal. Rptr.3d 729 (Cal. Ct. App. 2014)……………………………………15

State v. Bernard, 859 N.W.2d 762 (Minn. 2015)…………………………………….………10, 15

State v. Betterman, 342 P.3d 971 (Mont. 2015)………………………...…..…….………………1 State v. Nickerson, 322 P.3d 421 (Mont. 2014)…………………………………………………1 CONSTITUTIONAL PROVISIONS

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

U.S. Const. amend. VI………………………………………………...…………………16, 18, 23

STATUTORY PROVISIONS 28 U.S.C. § 1254…………………………………………………………………………………1 COURT RULES Fed. R. Crim. Pro. 32(a)………………………………………………………………………….20 Fed. R. Crim Pro. 48(b)…………………………………………………………………...……..20 UNITED STATES SENTENCING GUIDELINES U.S. Sentencing Guidelines Manual § 6A1.3 cmt. background (2004)……………………….…19 MISCELLANEOUS SOURCES Black’s Law Dictionary (10th ed. 2014)……………………………………………………..…..18

vi

Criminal Pattern Jury Instruction Committee of United States Court of Appeals for the Tenth Circuit, Tenth Circuit Criminal Pattern Jury Instructions, § 1.20 (2011)…………………….….19

NHTSA, Traffic Safety Facts, 2012 Data 1 (No. 811870, Dec. 2013)………………..…………..8

OPINIONS BELOW

The majority decision of the Supreme Court of Setonia reversing the district court’s

judgment for the Fourth Amendment issue, and affirming the decision for the Sixth Amendment

issue is unreported, and can be found in the Record from pages one through seven. The

dissenting opinion can be found in the Record from pages seven through ten.

STATEMENT OF JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C. §1254.

CONSTITUTIONAL PROVISIONS

The following constitutional provisions appear in this brief: U.S. Const. amend. IV; U.S.

Const. amend. VI.

STANDARD OF REVIEW

A de novo standard of review is applied by this Court for questions of law such as a

denial of a dismissal, and the trial court’s analysis of constitutional principles. State v.

Betterman, 342 P.3d 971, 974 (Mont. 2015) (citing State v. Nickerson, 322 P.3d 421, 422 (Mont.

2014)).

STATEMENT OF THE CASE

A. Statement of Facts

On October 4, 2014, Brick City Police Officers Wilson and Egan were dispatched to the

scene of a reported disturbance of three intoxicated men attempting to remove a boat from a river

launch with a truck in Sandy Hook, Setonia. R. at 1. The officers approached all three men and

observed that the truck was hanging over the pavement, detected a strong odor of alcohol, and

noted that Petitioner Gary Walsh was in his underwear. R. at 1. Mr. Walsh has incurred four

impaired driving convictions since 2008. R. at 2 n.2. During questioning, Mr. Walsh admitted

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that he had been drinking, but denied being the truck's driver, despite the fact that he was holding

the keys to the truck. R. at 1. A third-party witness identified Mr. Walsh as the truck driver and

Mr. Walsh was arrested on suspicion of driving while impaired. R. at 1. Officer Egan read Mr.

Walsh Setonia's Implied Consent Advisory, which explained to Mr. Walsh that his refusal to take

a chemical test when offered was a crime, and that he had the right to consult with an attorney

first, but contingent on there being no unreasonable delay in administering the test. R. at 2. Mr.

Walsh declined to take a chemical test and the State then charged him with two counts of the

crime of First Degree Driving While Impaired – Test Refusal. R. at 3. No chemical test was

forced and neither officer attempted to seek a warrant to force one. R. at 2.

Mr. Walsh’s bail jumping conviction stemmed from a series of confrontations with the

law. The first encounter occurred on September 1, 2014 when Mr. Walsh was arrested for family

member assault during a raucous Labor Day picnic. R. at 3. On September 9, 2014, Mr. Walsh

failed to appear for his arraignment on the assault charges. R. at 3. Mr. Walsh failed to appear

again on September 10, 2014, after the court granted a continuance, and an arrest warrant was

issued. R. at 3. This warrant came to the attention of Brick City Officers Egan and Wilson on

October 4, 2014 during Mr. Walsh’s arrest for Driving While Impaired- Test Refusal. R. at 2, 3.

On October 13, 2014, Mr. Walsh was formally charged with bail jumping after admitting to

Judge Brookheimer during his test refusal arraignment in the Superior Court of Setonia that he

was aware of missing his September court appearance. R. at 3. On October 24, 2014, Mr. Walsh

pled guilty to family member assault, and was sentenced to five years imprisonment with two

years suspended and credit for time served. R. at 3.

After Mr. Walsh pled guilty to bail jumping on November 14, 2014 the State filed notice

of its intention to designate Walsh as a persistent felony offender. R. at 3. Nearly a week later,

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Mr. Walsh objected to the designation, and after a hearing on January 21, 2015 the matter was

taken under advisement for Judge Ryan’s careful consideration. R. at 3. In the meantime, Mr.

Walsh’s revised presentence investigation report was prepared, and completed in May 2015. R.

at 3. A sentencing date was set on July 8, 2015, and despite this notice, Mr. Walsh waited until

the day of sentencing, July 28, 2015, to file a motion to dismiss the charge on grounds of a

speedy trial violation. R. at 3. As a result, sentencing was delayed in order for the State to

respond, and for Judge Ryan to consider the arguments. R. at 3. Mr. Walsh’s motion was denied

in Judge Ryan’s October 13, 2015 decision, and again by the Superior Court to whom Mr. Walsh

sent an affidavit affirming that the one year and approximately one month he spent in the Brick

City Detention Center negatively affected his health, well-being, and access to services only

available in state prison. R. at 3, 4. Shortly thereafter, Mr. Walsh’s last request for relief was

denied and he was sentenced on December 28, 2015 to serve a consecutive term of seven years,

with four years suspended in Setonia State Prison. R. at 4.

B. Procedural History

Following his arrest for Driving While Impaired-Test Refusal, Gary Walsh’s attorney

filed a motion to dismiss arguing that criminalization of refusal to take a breath test is in

violation of the Fourth Amendment and Setonia’s Constitution. R. at 2. The court granted

Walsh’s motion, and dismissed the charge without disturbing the constitutionality of the statute.

R. at 2. The State appealed the decision to the Setonia Appellate Division. R. at 2. The matter

was transferred to the Supreme Court of Setonia due to the constitutional importance of the issue.

R. at 2.

On July 28, 2015, the date of Mr. Walsh’s sentencing for the bail jumping charge,

Walsh’s attorney filed a motion to dismiss based on a speedy trial violation for delay in

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sentencing. R. at 3. On October 13, 2015 Judge Ryan issued a written opinion denying Mr.

Walsh’s motion. R. at 3. On November 24, 2015 Mr. Walsh filed an affidavit with the Superior

Court requesting dismissal of the bail jumping charge. R. at 4. The Superior Court denied the

request, and Mr. Walsh appealed to the Setonia Appellate Division. R. at 4. The matter was

transferred to Setonia Supreme Court due to the constitutional importance. R. at 4.

The Setonia Supreme Court consolidated both appeals for consideration, and held neither

Mr. Walsh’s Fourth or Sixth Amendment rights had been violated. R. at 4. The Supreme Court of

the United States granted certiorari on February 8, 2016. R. at 11.

SUMMARY OF THE ARGUMENT

This case is about the ongoing struggle by law enforcement to balance the practical

realities of the proper administration of justice with the constitutional protections of criminal

defendants. The first issue exemplifies the struggles of the State to regulate and prevent drunk

driving, a crime which is both pervasive and destructive. The damage inflicted by drunk driving

is significant, and in order to better control rising death tolls, the State of Setonia enacted Implied

Consent Statute 169A.51, which criminalized test refusal after an arrest for probable cause has

been effectuated. The statute criminalizes refusal of a warrantless search, but does so in such a

way as to strictly limit its criminalization to a lawful exception to the warrant clause.

While the Fourth Amendment does require a warrant before a search, there are

exceptions. The Search Incident to Lawful Arrest exception is a per se reasonable exception

which requires an arrest under probable cause before a search may be conducted. The State of

Setonia’s Implied Consent Statute criminalizes the refusal of a warrantless search, but requires

both probable cause and an arrest before the statute triggers and the refusal becomes criminal.

The statute is, in effect, a codification of a per se reasonable exception to the warrant

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requirement. As a per se reasonable exception, no justification is necessary unless a recognized

exemption from the Search Incident to Lawful Arrest exception exists.

By strictly limiting its statute to only trigger upon the existence of a lawful exception, the

State of Setonia seeks to grant police officers a powerful, but lawful tool, which would allow

them to compel the preservation of otherwise unsecured evidence. By adopting the Search

Incident to Lawful Arrest exception as a requirement, Setonia has crafted a statute that both

addresses public policy concerns and provides clear guidance and restraints on law enforcement.

The Speedy Trial Clause of the Sixth Amendment traditionally applied to prejudicial

delays occurring after an accused person was indicted, but before trial. The expansion of this

right to include sentencing is unprecedented, and is unsupported by Supreme Court case law,

which has only expanded the meaning of the Clause in order to address a marginally related

sentencing issue. The text of the Clause provides important clues, as the plain reading of

“accused” and “trial” is inconsistent with the meaning of “convicted” and “sentence.” These

textual differences are supported by the procedures and qualities that comprise a criminal trial.

A trial is characterized by a fact-finding jury, a high burden of proof, and remains focused on

determining guilt or innocence. Conversely, the sentencing phase is orchestrated by a judge, who

applies a lower standard of proof, with the goal of determining the appropriate punishment for

the convicted person. In addition to these distinctions, the established purposes of the Speedy

Trial Clause support the accused person’s preparation and well-being before trial, but not that of

the convicted person at sentencing because the interests of both the criminal defendant and

society shift during these phases. The interests of the convicted person are best addressed

through other constitutional remedies such as the Due Process Clause, which ensures the

criminal prosecution is not undermined through inflexible remedies.

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ARGUMENT

I. STATES MAY CRIMINALIZE AN ARRESTEE'S REFUSAL TO TAKE A CHEMICAL TEST FOR THE PURPOSES OF RECORDING BLOOD ALCOHOL CONTENT WHEN SUCH SEARCHES ARE PER SE REASONABLE UNDER THE SEARCH INCIDENT TO ARREST WARRANT EXCEPTION AND NO EXEMPTION APPLIES.

This Court should uphold the constitutionality of implied consent statutes that criminalize

warrantless chemical test refusal, when said statutes strictly limit themselves to established

exceptions to the warrant requirement. Setonia's Implied Consent Statute only triggers upon the

refusal by an arrestee to submit to a lawful warrantless chemical test following an arrest for

probable cause of Driving While Impaired, and so is constitutional.

The Fourth Amendment to the United States Constitution provides that “the right of the

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

and seizures” and that “no Warrants shall issue, but upon probable cause.” U.S. Const. amend.

IV (emphasis added). Reasonableness is the cornerstone of Fourth Amendment limitations on

state searches, and governs the permissibility of a warrantless search exception. Brigham City v.

Stuart, 547 U.S. 398, 403 (2006). One exception to the warrant requirement is the Search

Incident to Lawful Arrest (SILA) exception, which makes per se reasonable any search by police

following a lawful arrest for probable cause. United States v. Robinson, 414 U.S. 218, 235

(1973); See also Chimel v. California, 395 U.S. 752, 763 (1969). States can criminalize the

refusal to consent to a warrantless search which falls within a recognized exception to the

warrant clause. See Camara v. Municipal Court of San Francisco, 387 U.S. 523, 527 (1967).

Setonia's Implied Consent Statute criminalizes an arrestee's refusal to take a chemical

test, “to determine if the person is under the influence of alcohol, controlled substances, or

hazardous substances” once the suspect has been lawfully arrested under the probable cause

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standard. R. at 1-2 n.1. Setonia's Implied Consent Statute only triggers upon the existence of a

search incident to lawful arrest for probable cause, which is a “specifically established and well

delineated exception[]” to the warrant requirement. Katz v. United States, 389 U.S. 347, 357

(1967). Because the search refused always falls under a recognized exception, Setonia's

criminalization of the search refusal is constitutional.

A. States Can Criminalize Refusal of Chemical Test Searches Incident to Lawful Arrests Because Searches Incident to Lawful Arrests are Per Se Reasonable Intrusions Upon the Fourth Amendment.

The Search Incident to Lawful Arrest exception requires only that the arrest preceding the

search be lawful and supported by probable cause. Once an arrest supported by probable cause is

executed, “a search incident to the arrest requires no additional justification.” Robinson, 414 U.S.

at 235. Requiring no additional justification, the searches refused are per se reasonable, lawful,

and constitutional. Therefore, no illegal search refusal is criminalized by Setonia's Implied

Consent Statute.

The Search Incident to Lawful Arrest exception is based on the right of the state “always

recognized under English and American law” to search an arrestee in a lawful arrest. Weeks v.

United States, 232 U.S. 383, 392 (1914). This Court has recognized the established nature of this

exception, noting that “the validity of the search of a person incident to a lawful arrest has been

regarded as settled from its first enunciation.” Robinson, 414 U.S. at 224. Because the post-arrest

search of a suspect's person “requires no additional justification,” searches following an arrest for

probable cause are per se reasonable without a warrant. Id. at 235.

Because searches incident to a lawful arrest are categorically constitutional in nature, this

court has primarily limited the search incident to lawful arrest exception based on the area

surrounding a defendant, See Chimel, 395 U.S. at 763 (1969) (limiting the SILA exception to a

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defendant's person or area); See also Arizona v. Gant, 556 U.S. 332, 339 (2009) (limiting the

SILA exception to the search of an arrestee's person and the area of a defendant's control), and

has only limited the search of an arrestee's person based on a categorical exemption for cellular

data due to the unique nature of the category, Riley v. California, 134 S.Ct., 2473, 2485 (2014).

Upon a valid arrest supported by probable cause, a law enforcement officer may conduct

“a full search of the person.” Robinson, 414 U.S. at 235. This Court has recently upheld the

Robinson rejection of “case-by-case adjudication” and reaffirmed the per se reasonableness of

warrantless searches incident to lawful arrests. Riley v. California, 134 S.Ct. 2473, 2485 (2014)

(citing Robinson, 414 U.S. at 236). The upholding of the per se reasonableness of the SILA

exception was motivated in part by this Court's long-standing policy of providing “clear

guidance to law enforcement through categorical rules.” Id. at 2491. The use of categorical rules

promotes an even application of criminal procedure, by avoiding case-by-case adjudication

which would lead to variable outcomes in Fourth Amendment protection cases, based on

jurisdiction efficiency, resources, and timing. Thus, the use of SILA as a categorical standard by

Setonia’s Implied Consent Statute, is consistent with this Court’s policy.

Reaffirming the per se reasonableness of the SILA exception is in accordance with this

Court's policy, particularly in a crime as pervasive and destructive as drunk driving where

officers on the scene act as the primary line of prevention. See NHTSA, Traffic Safety Facts,

2012 Data 1 (No. 811870, Dec. 2013) (reporting an average of one alcohol-impaired-driving

fatality every fifty-one minutes). The warrantless search of an arrestee through a chemical test

incident to an arrest for probable cause does not include the search of cellular data, which is the

only categorical exemption recognized by this Court, Riley, 134 S.Ct. at 2485, and so a chemical

test incident to a lawful arrest for DWI would require no further justification, Robinson, 414 U.S.

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at 235. Setonia's Implied Consent Statute only triggers when a per se reasonable exception to the

warrant clause is present, so the statute does not criminalize the refusal of any illegal search.

Camara, 387 U.S. at 527. Lacking such a categorical exemption, Setonia's Implied Consent law

is constitutional.

B. This Court's Reasoning in Chimel, Gant, and Riley Upholds the Application of the Search Incident to Lawful Arrest Exception to Chemical Tests in the DWI Context.

In order to be exempted from the search incident to lawful arrest exception, the search of

a person must be unattached from the need to secure a crime scene from interference, Gant, 566

U.S. at 335, or possess unique facts which elevate privacy concerns above the compelling

government interest in searching the defendant, Riley, 134 S.Ct. at 2486. Because Setonia's

Implied Consent Statute only criminalizes the refusal of searches rooted in the justifications of

Chimel and containing none of the unique factors present in Riley, this Court should decline to

extend an exemption and reaffirm the use of chemical tests under the SILA exception as a

necessity to secure inherently unstable evidence.

In Chimel, this Court justified the search of a person for evidence because, “it is entirely

reasonable for the arresting officer to search for and seize any evidence on the arrestee's person

in order to prevent its concealment or destruction.” 395 U.S. at 762-63. The chemical test of

Setonia's Implied Consent Statute is administered “for the purpose of determining the presence

of alcohol, a controlled substance or its metabolite, or a hazardous substance . . . .” R. at 1-2 n.1.

In Gant, this Court ruled that the SILA exception for the automobile context applies

“only when the arrestee is unsecured and within reaching distance of the passenger compartment

at the time of the search.” 566 U.S. 332, 333 (2009) (emphasis added). This Court in Gant held

that “the justifications underlying Chimel no longer exist[ed] because the scene [was] secure and

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the arrestee [was] handcuffed, secured in the back of a patrol car, and under the supervision of an

officer,” and this combination of factors rendered the search of an area for evidence

unconstitutional. Id. at 335 (emphasis added). The language of the holding specifically cites to

the security of the scene as an integral part of this Court’s decision. Id. The Minnesota Supreme

Court has concurred on this matter, holding that the reach of the defendant is irrelevant in the

context of a SILA exception where evidence of the crime arrested for is certain to be destroyed.

State v. Bernard, 859 N.W.2d 762, 766 (Minn. 2015).

In Riley, this Court prohibited the search of the data contained within an arrestee's phone,

because “once law enforcement officers have secured a cell phone, there is no longer any risk

that the arrestee himself will be able to delete incriminating data from the phone.” Riley, 134

S.Ct. at 2486. The Government argued that once physically secured, a cell phone was still

vulnerable to “remote wiping and data encryption.” Id. at 2478. This Court found this argument

unconvincing due to the lack of evidence that either type of interference was “prevalent.” Id. at

2486. The practical methods available police to secure phone data also supported this Court's

exemption of cellular data, because officers had many alternative ways to secure data without a

search. Id. The unlikelihood of destruction, as well as these alternative methods of securing

evidence, effectively nullified the Chimel justification to search for evidence in a SILA, and so

this Court categorically exempted cellular data. Id.

This Court also noted that the search of data on a cell phone “differ[s] in both a

quantitative and a qualitative sense from other objects.” Riley, 134 S.Ct. at 2489. In traditional

searches, “the possible intrusion on privacy is not physically limited in the same way” and so the

privacy interests of an arrestee are weighed against the search of phone data within the SILA

exception. Id. Both prongs of this Court's reasoning in Riley are inapplicable in the context of a

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chemical test pursuant to a DWI arrest, and so a unique exemption should not be applied to

chemical tests.

Whereas the decision in Riley found the concerns of evidence destruction to be unlikely,

the metabolization of blood alcohol content (BAC) in a DWI case “is not simply a belief that any

alcohol in the bloodstream will be destroyed; it is a biological certainty.” Missouri v. McNeely,

133 S.Ct. 1552, 1571 (2013) (5-4 decision) (Alito, J., dissenting). The practical alternatives

available to an officer in securing and preserving the data of a cell phone are absent with regards

to BAC. The only method to record the BAC accurately at the time of the arrest is through a

chemical test as required by Setonia's Implied Consent Statute.1 This lack of practical and

accurate alternatives stands in contrast to the readily available methods for officers in preserving

cellular data, Riley, 134 S.Ct. at 2486, or the traditional methods of securing a crime scene in

Gant, 566 U.S. at 355.

The privacy implications articulated by Riley are also absent from the chemical test,

because the information available through a chemical test under Setonia's Implied Consent

Statute is limited. Riley noted that phones “might hold photographs, picture messages, text

messages, Internet browsing history, a calendar, a thousand-entry phone book, and so on.” Riley,

134 S.Ct. at 2489 (citation omitted). Chemical tests under Setonia's Implied Consent law provide

one type of information; blood alcohol content, for which “[t]here is a compelling need to search

because alcohol—the nearly conclusive evidence of a serious crime—is dissipating from the

bloodstream.” McNeely, 133 S.Ct. at 1571 (Alito, J., dissenting). While motorists do maintain a

1 This Court has recognized that “[w]hile experts can work backwards from the BAC at the

time the sample was taken to determine the BAC at the time of the alleged offense, longer intervals may raise questions about the accuracy of the calculation.” McNeely, 133 S.Ct. at 1563 (emphasis added). In the context of a criminal trial under the probable cause standard, accuracy of a crime scene is paramount to successful enforcement.

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strong privacy concern in “in preventing an agent of the government from piercing his skin,”

McNeely, 133 S.Ct. at 1564, these privacy concerns are lessened in the context of a chemical test

following a lawful arrest for DWI due to the “reduced expectations of privacy caused by the

arrest.” Maryland v. King, 133 S.Ct. 1958, 1980 (2013) (holding that in the context of a valid

arrest supported by probable cause, the arrestee's expectations of privacy were lessened and

insufficient to render unreasonable a cotton swab). The Second Circuit has agreed, holding that

breathalyzer tests were reasonable searches incident to lawful arrests. See United States v. Reid,

929 F.2d 990, 994 (4th Cir. 1991). These lessened privacy concerns were insufficient to

overcome the unique context of cellphones, which “place vast quantities of personal information

literally in the hands of individuals.” Riley, 134 S.Ct. at 2485. In contrast, Setonia's Implied

Consent Statute strictly limits the search to identify substances related to the DWI arrest. R. at 1-

2 n.1 Because of this narrow application, the broad privacy concerns of Riley are inapplicable to

DWI chemical tests under Setonia's Implied Consent Statute.

Chemical tests incident to an arrest for DWI meet neither of the concerns which

motivated the Riley exemption to cell phone data, and are based on the concerns of Chimel,

Gant, and Riley that evidence, in this case certain to be destroyed, must be secured for future

proceedings. This Court's prior reasoning and analysis compels it to not extend an exemption to

DWI chemical tests and to hold that the use of such tests is firmly rooted in the justifications of

Chimel.

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C. This Court's Ruling in McNeely Recognizes that a Warrantless Chemical Test is Reasonable Under the Per Se Reasonableness of a Search Incident to a Driving While Impaired Arrest and That Implied Consent Laws are Appropriate Legal Tools To Effectuate State Enforcement of Drunk Driving Laws.

This Court's McNeely decision was a narrow rejection of Missouri’s attempted

application of a per se rule to the exigency exception, based on the natural metabolization of

alcohol. McNeely, 133 S.Ct. at 1568. This Court held that “in drunk-driving investigations, the

natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case

sufficient to justify conducting a blood test without a warrant.” Id. (emphasis added). Because

the case presented did “not provide this Court with an adequate analytic framework for a detailed

discussion of all the relevant factors that can be taken into account in determining the

reasonableness of a warrant,” this Court only recognized that “the metabolization of alcohol in

the bloodstream and the ensuing loss of evidence are among the factors that must be considered

in deciding whether a warrant is required.” Id. By narrowing its ruling, this Court left unclear

what combination of factors would allow a warrantless chemical test, but implicitly recognized

the reasonableness of a warrantless chemical test incident to a lawful arrest in its McNeely

decision. This Court effectively recognized that while natural metabolization alone is not

enough, it would be sufficient to justify a warrantless search in situations where other factors

were present. McNeely, 133 S.Ct. at 1568. Because exigency requires case-by-case adjudication

and “special facts,” this Court held that more was needed for exigency. Id. at 1557.

However, special facts and case-by-case analysis are not necessary in the context of a

search incident to arrest for DWI. The arrest for probable cause provides the requisite factor

required by this Court in McNeely. The arrest for probable cause prior to search imposes reduced

privacy expectations on the arrestee. King, 133 S.Ct. at 1980. These lowered privacy

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expectations work in concert with the metabolization of alcohol, rendering a warrantless

chemical for BAC reasonable. Because Setonia's Implied Consent Statute would only trigger

when the additional factor of an arrest and the accompanying lowered privacy interests were

present, the search incident to lawful arrest provides the unspoken factor necessary in McNeely.

This holding from McNeely provides support to the SILA exception in the DWI context, which

is consistent with the plurality's explicit approval for Implied Consent Laws.

In writing for the plurality, Justice Sotomayor noted with approval that “all 50 States

have adopted implied consent laws that require motorists, as a condition of operating a motor

vehicle within the State, to consent to BAC testing if they are arrested or otherwise detained on

suspicion of a drunk-driving offense.” McNeely, 133 S.Ct. at 1566. These statutes are one of “a

broad range of legal tools to enforce . . . drunk driving laws and to secure BAC evidence without

undertaking warrantless nonconsensual blood draws.” Id. Setonia's implied consent law acts as

one of these legal tools, allowing officer to continue to regulate DWI crimes on roads without

requiring officers to forcibly draw blood in an unreasonable manner. This is consistent with the

application of Setonia's Implied Consent Statute in Mr. Walsh's case, where no warrantless

nonconsensual blood draw was forcibly conducted. R. at 1-2. This legal tool addresses the

plurality’s concerns of over-broad forced search power discussed in McNeely, while also

providing the guidance to law enforcement called for by the concurrence and dissents.

The dissent of McNeely argued that the plurality's holding led to a lack of guidance with

regards to typical drunk driving cases. 133 S.Ct. at 1569 (Alito, J., dissenting). Justice Kennedy,

in his concurring opinion, acknowledged this criticism, but noted the “[s]tates and other

governmental entities which enforce the driving laws can adopt rules, procedures, and protocols

that meet the reasonableness requirements of the Fourth Amendment and give helpful guidance

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to law enforcement officials.” Id. (5-4 decision) (Kennedy, J., concurring). Setonia's Implied

Consent Statute effectively addresses this concern, by providing bright line rules based on a

codification of the SILA exception. This statute is enacts this Court's policy of providing “clear

guidance to law enforcement through categorical rules.” Riley, 134 S.Ct. at 2491. Use of

categorical rules is particularly applicable to DWI crimes, which are common, and in the context

of automobiles, where the privacy interest of the motorist is always lessened due to the unique

physical characteristics of automobiles and the State's interest in regulating their use. See New

York v. Class, 475 U.S. 106, 112-13 (1986). This is the purpose of the SILA exception, as such a

categorical rule provides clear guidance to officers as to the lawfulness of a search, and codifying

this exception provides clear guidance as to when a particular situation falls within the SILA

exception.

McNeely acknowledged the importance of such careful guidance for law enforcement,

and noted with approval the use of such statutes, without reservation for the consequence

incurred by refusal on the part of the defendant. McNeely, 133 S.Ct. at 1566 (speaking favorably

of “implied consent laws that require motorists, as a condition of operating a motor vehicle

within the State, to consent to [BAC] testing if they are arrested or otherwise detained on

suspicion of a drunk-driving offense”). Setonia chooses to impose criminal penalties for such

refusal, when an arrest for probable cause is present, because the search falls within an

applicable exception. State Courts have similarly upheld criminal penalties for test refusal

statutes, when the presence of an arrest and probable cause are required. Compare State v.

Bernard, 859 N.W.2d 762, 766 (Minn. S.Ct. 2015) (upholding a criminal punishment for test

refusal on the basis of a search incident to lawful arrest exception), and People v. Harris, 170

Cal. Rptr.3d 729, 734 (2014) (upholding the state's implied consent statute, which attaches

16

criminal penalties for refusing following arrest for probable cause), with McNultry v. Curry, 42

Ohio St.2d 341, 345 (Ohio. 1975) (upholding R.C. S. 4511.191 due to its use of administrative

punishment following reasonable grounds to suspect a DUI) (emphasis added). This Court's own

plurality, concurrences, and dissents in McNeely suggest the permissibility of Implied Consent

Statutes, even when those statutes impose criminal penalties for refusal. Compelled by the

reasoning of all opinions in McNeely, this Court should uphold the constitutionality of the State

of Setonia's Implied Consent Statute, and in so holding, uphold the constitutionality of similar

statutes which criminalize an arrestee's refusal to take a warrantless chemical test to identify the

presence of alcohol in their blood.

II. THE SIXTH AMENDMENT’S RIGHT TO A SPEEDY TRIAL DOES NOT EXTEND TO POST-CONVICTION DELAYS BECAUSE THE SENTENCING PROCESS HAS A DISTINCTIVE PROCEDURE AND PURPOSE THAT IS BEST SUPPORTED THROUGH OTHER CONSTITUTIONAL REMEDIES.

Under the Sixth Amendment of the United States Constitution, “[i]n all criminal

prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of

the State and district wherein the crime shall have been committed . . . .” U.S. Const. amend. VI.

Traditionally, this Court has looked at the particular circumstances surrounding a delay, and has

provided relief to those criminal defendants who have experienced prejudice as a result of

pretrial delays by balancing the four factors outlined in Barker v. Wingo, 407 U.S. 514, 530

(1972). This Court has held that the proper remedy for such delays is dismissal of the charges in

order to best support the purposes of the Speedy Trial Clause, and protect the accused person

awaiting trial. Strunk v. United States, 412 U.S. 434, 439-41 (1973). This cure has been

narrowly applied to the time between indictment and trial, as this Court has not expanded reading

of the Clause to extend to pre-indictment delays. United States v. Lovasco, 431 U.S. 783, 796-97

(1977). The Sixth Amendment’s Speedy Trial Clause is limited to protecting the accused person

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during the pivotal point of the criminal prosecution; the trial stage. This Court should not

undermine the purposes of the Clause by expanding its reading to include protection of convicted

persons during sentencing, a distinct, post-trial proceeding.

A. Sentencing has Only Been Considered an Extension of Trial In Dicta for an Unrelated Purpose and Holds No Binding Authority.

The assumption presented in Pollard v. United States, 352 U.S. 354, 361 (1957), that

sentencing is “part of the trial for purposes of the Sixth Amendment,” was created for the limited

intention of determining the reasonableness of the delays in the defendant’s sentencing. Id. In

Pollard, the defendant pled guilty, and appeared before the sentencing judge who imposed no

formal sentence in his presence, but later clarified his order to impose three years of probation

after the defendant had left the courtroom. Id. at 356. This Court held that the imposition of a

new, valid sentence of two years imprisonment following the defendant’s probation violation

was not an infringement of the defendant’s right to a speedy trial because the delay was

accidental, and neither purposeful nor oppressive. Id. at 357, 361. The crux of Pollard is the

nature of the sentencing error that was only discovered when the defendant’s case resurfaced as a

result of his probation violation. Id. at 357. The court had operated under the mistaken belief that

it had appropriately adjudicated Pollard’s case until the error was revealed, and then corrected it

in a timely manner. Id. Pollard’s case is not representative of the cases such as that of Mr. Walsh

who waited 400 days for his bail jumping sentence, and now questions the constitutionality of

delays in sentencing promptness. R. at 4. To resolve this issue; however, lower courts have

looked to Pollard for an analysis of the Sixth Amendment’s Speedy Trial Clause that does not

exist. The determination of sentencing as a part of trial was peripheral to the Pollard holding, and

created no binding precedent. A judicial determination of the breadth of one’s speedy trial rights

has serious implications for the accused, convicted, and the public that deserves a thorough

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analysis based not on a sentence of dicta, but on the words, history, and policy of the Sixth

Amendment’s Speedy Trial Clause.

B. The Characteristics of the Sentencing Process are Distinct From the Qualities That Define a Trial and These Differences Have Been Exemplified in Various Rules and Laws Throughout History.

The relevant words of the Sixth Amendment’s Speedy Trial Clause state, “In all criminal

prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . .

. .” U.S. Const. amend. VI. The words of the Constitution were intended by the framers to be

“used in their normal and ordinary . . . meaning.” United States v. Sprague, 282 U.S. 716, 731

(1931). The plain meaning and usage of the words “accused” and “trial” offer insight into the

limited applicability of the Speedy Trial Clause from the time of indictment to the finding of

guilt when coupled with the purposes of the Clause, “[] to prevent oppressive pretrial

incarceration; [] to minimize anxiety and concern of the accused; and [] to limit the possibility

that the defense will be impaired.” Barker, 407 U.S. at 532. The trial and sentencing phase of a

criminal prosecution are differentiated by their own procedures and rules that support their

distinctive meanings and purposes.

A criminal defendant’s protection under the Speedy Trial Clause concludes upon a

change of status from the accused to the convicted. Black’s Law Dictionary defines the

“accused” as “[a] person against whom legal proceedings have been initiated.” Black’s Law

Dictionary 26 (10th ed. 2014). Whereas the same dictionary defines convict as, “to find (a

person) guilty of a criminal offense upon a criminal trial, a plea of guilty, or a plea of nolo

contendre.” Id. at 408. The process by which guilt is proven is the trial a “formal judicial

examination of evidence and determination of legal claims in an adversary proceeding.” Id. at

1735. The finding of guilt or innocence by trial is the most crucial point in the criminal justice

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process, and as such is safeguarded by rules and procedures separate from all other stages in the

adjudication, including sentencing.

A finding of guilt for committing a crime is independent of the imposition of a sentence

for that offense. This Court has held that a jury should “reach its verdict without regard to what

sentence might be imposed.” Shannon v. United States, 512 U.S. 573, 579 (1994) (quoting

Rogers v. United States, 422 U.S. 35, 40 (1975)). The jury’s distinct fact-finding role is

exemplified in the judge’s instructions, “If you find the defendant guilty, it will be my duty to

decide what the punishment will be. You should not discuss or consider the possible punishment

in any way while deciding your verdict.” Criminal Pattern Jury Instruction Committee of the

United States Court of Appeals for the Tenth Circuit, Tenth Circuit Criminal Pattern Jury

Instructions, § 1.20 (2011). Different parties not only deliver the verdict and sentence at separate

times, but the processes are also governed by their own standards of proof.

Traditionally, proof beyond a reasonable doubt has served as the prosecution’s required

standard of persuasion in criminal trials. In re Winship, 397 U.S. 358, 361 (1970). However, the

United Sentencing Commission has commented on the sufficiency of a lower standard for

sentencing saying, “use of a preponderance of the evidence standard is appropriate to meet due

process requirements and policy concerns in resolving disputes regarding application of the

guidelines to the facts of a case.” U.S. Sentencing Guidelines Manual § 6A1.3 cmt. background

(2004). This Court has applied a higher standard of proof for additional findings of fact for

sentencing range departures, but sentencing factors continue to be determined by the sentencing

judge at a lower standard. In Alleyne v. United States, 133 S.Ct. 2151 (2013), this Court held

that any fact that increases the penalty for an offense is an “element” that must be submitted to a

jury. In order to increase the defendant’s sentence from five years to a mandatory minimum of

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seven years, the jury was required to make a factual finding that a weapon was “brandished”

during the crime. Id. at 2163. The jury’s role is to determine the elements of the crime, which

includes facts that will increase the minimum or maximum mandatory sentence. Id. at 2158. This

is distinct from the judge’s typical role at sentencing because it is not simply the application of a

sentence to the crime, but the alteration of the crime itself.

Trial is a distinctive process characterized by findings of fact made by a jury of the

accused’s peers, and a presumption of innocence unless the prosecution proves guilt beyond a

reasonable doubt. The sentencing shares none of these defining qualities, and it is unreasonable

to treat it as a continuation of trial when it is independent in practice. Even the Federal Rules of

Criminal Procedure have recognized the distinction with separate rules for trial and sentencing

delays. See Fed. R. Crim. Pro. 32(a); Fed. R. Crim Pro. 48(b). The Sixth Amendment’s Speedy

Trial protections extend only to the accused as he prepares for trial, the procedure used to

determine if the defendant is guilty.

C. An Expansive Reading of the Speedy Trial Clause Does Not Support Its Purposes of Protecting the Accused Person Preparing for Trial.

A precise reading of trial in the Sixth Amendment is not only supported by the text, and

practice but also the purposes of the Clause as outlined in Barker, 407 U.S. at 532. In Barker, the

defendant waited 20 months from the time he asserted his right to a speedy trial until trial. Id. at

518. This Court held that the defendant was not deprived of his right to a speedy trial when the

length of the delay, and the reasons attributed to the delay, which were only partially valid, were

weighed against the minimal prejudice to the defendant, and the defendant’s hesitance in

asserting his speedy trial claim. Id. at 534-35. The purpose of the Clause is to protect the

defendant’s interests. Id. at 532. The first of these interests is specifically aimed at preventing

impairment of the defense Id. at 532. Promptness is critical to mounting an effective defense

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before evidence disappears and witnesses’ memories fade, but once the defendant’s status

changes from accused to convicted time is no longer of the essence for sentencing purposes.

United States v. Sanders, 452 F.3d 572, 580 (6th Cir. 2006). Precedent states that during

sentencing the judge’s determination must be solely based on facts determined by the jury at

trial, Apprendi v. New Jersey, 530 U.S. 466, 483 (2000), which eliminates any concern over

evidence loss at the sentencing stage as these factual findings have already been made, and are

now preserved on the trial record.

The second interest, concern for preventing anxiety and depression diminishes once the

defendant is convicted. Barker, 407 U.S. at 532. “Once guilt has been established in the first

instance the balance between the interests of the individual and those of society shift

proportionately.” Perez v. Arizona, 793 F.2d 249, 254 (10th Cir. 1986). Before trial, society has

an interest in protecting the innocent who at this point include the defendant awaiting trial, but a

finding of culpability shifts the source of anxiety from that cloud of “public accusation” to

“public guilt,” which rightly becomes the convicted person’s burden. Klopfer v. North Carolina,

386 U.S. 213, 222 (1967). While anxiety and depression do not necessarily diminish with a

conviction, the uncertainty and anticipation of awaiting one’s fate is eliminated, and any

additional stress caused by delays in the criminal proceedings can be remedied with a finding of

prejudice against the defendant; however, after a conviction these stressors are no longer the

responsibility of the State.

Lastly, the interest in “prevent[ing] oppressive pretrial incarceration” states a particular

type of incarceration, pretrial, which is irrelevant to this analysis of post-conviction delays.

Barker, 407 U.S. at 532. By explicitly stating its concern for pretrial protection, this Court did

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not show any intention of extending the same protection to the convicted person awaiting

sentencing under the Sixth Amendment.

In conclusion, this Court’s reasoning compels it to not extend protection to the

sentencing phase as the three purposes of the Speedy Trial Clause are not supported.

D. The Due Process Clause Provides the Appropriate Avenue of Relief Because it Recognizes Both the Interests of the Convicted Person and the Public Through More Moderate Remedies.

With a change in a person’s status from that of accused to guilty after a jury verdict or

guilty plea, the convicted person’s available constitutional remedies also change. The only

recognized remedy for violations under the Sixth Amendment’s Speedy Trial Clause is dismissal

of the charges. See Strunk, 412 U.S. 434 (1973). In Strunk, the appellate court held defendant’s

right to speedy trial was violated, but determined that dismissal of the charges to be too extreme.

Id. at 435. This Court disagreed, and held dismissal, although serious, to be the proper remedy to

support the purposes of the speedy trial right. Id. at 439-41. The severity yet necessity of such

recourse has been recognized by this Court because, “it means that a defendant who may be

guilty of a serious crime will go free, without having to be tried. Such a remedy is more serious

than an exclusionary rule or reversal for a new trial, but it is the only possible remedy.” Barker,

407 U.S. at 522. The Third Circuit suggests that a remedy other than dismissal, such as a reduced

sentence, is proper when the defendant suffers prejudice from a post-conviction delay. Burkett v.

Fulcomer, 951 F.2d 1431, 1447 (3d Cir. 1991). This expansion of the bright-line rule stated in

cases such as Barker and Strunk undermines the purpose of the Speedy Trial Clause as it not

only blurs the line of clearly established precedent, but also improperly provides relief under the

Sixth Amendment for sentencing delays.

23

By dismissing the criminal charges due to post-conviction delays, the jury’s

determination of guilt beyond a reasonable doubt is exchanged for one judge’s subjective finding

of prejudice warranting a dismissal. A dismissal may eliminate the criminal defendant’s

repercussions under the law, but his or her responsibility for the underlying crime will endure.

This escape of the guilty from punishment is irreconcilable with the Speedy Trial Clause’s

protection of the accused from delays that could materially or psychologically impact their

ability to prepare a defense. See U.S. Const. amend. VI. “The Constitution does not require that

sentencing should be a game in which a wrong move by the judge means immunity for the

prisoner.” Bozza v. United States, 330 U.S. 160, 166-67 (1947). To prevent criminal defendants

from benefitting from procedural errors, and dodging an incarceration term, alternative remedies

should be sought through the Due Process Clause, which allows “repair [of] the prejudice”

instead of “discharg[ing] the penalty.” Burkett v. Cunningham, 826 F.2d 1208, 1222 (3d Cir.

1987). The principles of Burkett can successfully be applied to Mr. Walsh, who like other

criminal defendants waiting in jail for sentencing, may not receive certain services or benefits,

such as counseling or conditional release, that would have been available from prison. R. at 4.

This temporary delay in the activation of inmate benefits while inconvenient does not rise to an

unconscionable level requiring a discharge of sentence, and the increased time served in jail can

later be remedied by credit for days served.

In United States v. Lovasco, 431 U.S. 783, 796-97 (1977), this Court used a due process

analysis to determine that the defendant suffered no prejudice due to a pre-indictment delay. Like

the other stages of a criminal prosecution, the pre-indictment stage has a unique set of interests

such as the importance of conducting a thorough investigation, gathering evidence, and allowing

prosecutorial discretion. Id. at 793-94. These interests must be taken into account when

24

reviewing the defendant’s alleged prejudice, but the defense is not deprived of due process “even

if his defense might have been somewhat prejudiced by a lapse of time.” Id at 796. The Due

Process Clause applies to the pre-indictment proceedings before the accused’s Sixth Amendment

rights attach. Similarly, a due process analysis provides the proper remedy for the convicted

person during the sentencing phase for delays that were not attributed to the defendant or the

court’s diligent consideration of the case.

In conclusion, only dismissal provides a cure that matches the serious effects of prejudice

during the time between indictment and trial, and should therefore be treated as a bright-line rule,

but the flexible relief available under the Due Process Clause adequately addresses the distinct

purposes and interests before indictment, and after trial.

CONCLUSION

Based on the aforementioned arguments, Respondent respectfully requests that this Court

affirm the decision of the Supreme Court of Setonia for both issues.