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No. 2015-01 ________________________________________________________________________________________________________
IN THE
Supreme Court of the United States
OCTOBER TERM 2015 _____________________
TOMAS HAVERFORD,
Petitioner, v.
STATE OF EAGLETON, Respondent.
_____________________
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF EAGLETON
BRIEF FOR PETITIONER
TEAM 7 COUNSEL FOR PETITIONER _________________________________________________________________________________________________________
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QUESTIONS PRESENTED
1. Whether the district court erroneously denied Tomas Haverford’s motion to suppress
evidence seized from his truck:
A. Did Deputy Sanderson lack reasonable suspicion to extend a traffic stop for a burnt
out headlight to investigate Mr. Haverford for driving under the influence of drugs
when Deputy Sanderson observed nervousness, restricted pupils, and shaking but was
not a drug recognition expert and saw no signs of impaired driving?
B. Did the unlawful extension of the traffic stop taint Mr. Haverford’s consent to search
his truck because the consent was given just twelve seconds after the unlawful stop?
C. Did Deputy Sanderson’s demonstration of authority over Mr. Haverford make Mr.
Haverford believe he was not free to leave so that Mr. Haverford was constructively
seized without reasonable suspicion at the time he gave consent to search?
2. Whether the district court erroneously refused to allow Mr. Haverford to withdraw his
guilty plea:
A. Was Brendanawicz’s legal advice that Mr. Haverford faced a strong chance of
deportation legally deficient when Mr. Haverford was actually subject to mandatory
deportation?
B. Was Mr. Haverford prejudiced by Brendanawicz’s erroneous legal advice when he
would have rejected the plea bargain and insisted on going to trial rather than face
certain deportation?
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TABLE OF CONTENTS
Page
Questions Presented ......................................................................................................................... i
Table of Authorities ...................................................................................................................... iv
Constitutional and Statutory Provisions Involved ........................................................................ vi
Statement of the Case ...................................................................................................................... 1
Summary of the Argument ............................................................................................................. 5
Argument ....................................................................................................................................... 7
I. This Court should reverse the judgment of the Supreme Court of Eagleton because the evidence was illegally seized in violation of the Fourth Amendment. ..... 7
A. Deputy Sanderson did not have reasonable suspicion to extend the traffic stop for a burnt out headlight to perform field sobriety tests because he was acting only on an erroneous hunch that Mr. Haverford was intoxicated. ............. 8
1. Deputy Sanderson did not have reasonable suspicions because his
observations describe almost every motorist that is pulled over for a traffic stop and do not indicate drug use. ......................................................... 9
2. Deputy Sanderson did not have reasonable suspicion to extend the
traffic stop to perform field sobriety tests because Mr. Haverford did not demonstrate any signs of intoxication. ...................................................... 10
B. The illegal extension of the traffic stop tainted Mr. Haverford’s consent to
search, making the evidence recovered from the search inadmissible. ............... 11
1. Mr. Haverford’s consent was not attenuated because it was given in a threatening environment and almost immediately after the unlawful extension of the traffic stop. .............................................................................. 12
2. Mr. Haverford’s consent was not attenuated because there were no
significant intervening circumstances that isolated his consent from the coercive effects of the illegal seizure. ............................................................... 13
3. Mr. Haverford’s consent was not attenuated because Deputy Sanderson
was acting with the intent to get Mr. Haverford to consent to the search even though he had no reasonable suspicion of criminal activity. ................ 15
C. Mr. Haverford was constructively seized without reasonable suspicion when
Deputy Sanderson re-approached him twelve seconds after the initial seizure because no reasonable person would have felt free to leave. ................................ 16
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1. Deputy Sanderson did not have reasonable suspicion because the field sobriety tests just revealed that Mr. Haverford was not under the influence of drugs or alcohol. ........................................................................... 16
2. Mr. Haverford was constructively seized because any reasonable person
would believe the initial traffic stop was still ongoing once Deputy Sanderson re-approached the truck. ............................................................... 17
II. This Court should vacate Mr. Haverford’s guilty plea because his counsel’s
representation was ineffective in violation of the Sixth Amendment. ........................ 19
A. The performance of Mr. Haverford’s counsel was deficient because he gave Mr. Haverford erroneous advice and his conduct fell outside prevailing professional norms. ................................................................................................. 20
1. The removal statute makes it clear that Mr. Haverford’s deportation
was presumptively mandatory, so it was legally deficient for Brendanawicz to advise him that there was only a “strong chance” of deportation. ........................................................................................................ 21
2. The removal statute makes it clear that Mr. Haverford is deportable
even if he is sentenced to probation, so it was incorrect for Brendanawicz to advise him that he would only be deported if he went to jail. ......................................................................................................... 23
3. Brendanawicz’s conduct fell outside prevailing professional norms
because he counseled Mr. Haverford concerning the deportation consequences of pleading guilty even though he remained completely ignorant of the relevant immigration law. ...................................................... 24
B. Brendanawicz’s deficient performance prejudiced Mr. Haverford because
he would not have pleaded guilty had he known deportation was presumptively mandatory. ...................................................................................... 26
1. Mr. Haverford’s strong ties to the United States and nonexistent ties to
Venezuela indicate that it would have been rational for him to insist on going to trial rather than plead guilty. ............................................................ 26
2. Mr. Haverford in fact testified that he would have insisted on going
to trial rather than plead guilty if his attorney had given him correct advice. ................................................................................................................. 27
3. Avoiding deportation was worth the risk of any potential prison sentence
to Mr. Haverford. .............................................................................................. 28 Conclusion ................................................................................................................................... 30
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TABLE OF AUTHORITIES Page
United States Supreme Court Cases
Boykin v. Alabama, 395 U.S. 238 (1969) ..................................................................................... 21
Brown v. Illinois, 422 U.S. 590 (1975) ............................................................................. 11, 12, 15
Hill v. Lockhart, 474 U.S. 52 (1985) ...................................................................................... 19, 26
Hinton v. Alabama, 134 S. Ct. 1081 (2014) ............................................................................ 24, 25
INS v. St. Cyr, 533 U.S. 289 (2001) .............................................................................................. 28
Lafler v. Cooper, 132 S. Ct. 1376 (2012) ..................................................................................... 19
McMann v. Richardson, 397 U.S. 759 (1970). ............................................................................. 19
Navarette v. California, 134 S. Ct. 1683 (2014) ............................................................................. 8
Padilla v. Kentucky, 559 U.S. 356 (2010) ...................................................... 19, 20, 21, 22, 23, 26
Rawlings v. Kentucky, 448 U.S. 98 (1980). .................................................................................. 13
Reid v. Georgia, 448 U.S. 438 (1980). ........................................................................................... 9
Rodriguez v. United States, 135 S. Ct. 1609 (2015) ....................................................................... 8
Strickland v. Washington, 466 U.S. 668 (1984). ........................................................ 19, 20, 24, 26
Terry v. Ohio, 392 U.S. 1(1968). .............................................................................................. 8, 11
United States v. Mendenhall, 446 U.S. 544 (1980). ............................................................... 16, 17
Wong Sun v. United States, 371 U.S. 471 (1963). ........................................................................ 11
United States Court of Appeals Cases
Karnes v. Skrutski, 62 F.3d 485 (3rd Cir. 1995). ............................................................................ 9
United States v. Chanthasouxat, 342 F.3d 1271 (11th Cir. 2003) ............................................... 12
United States v. Fernandez, 18 F.3d 874 (10th Cir. 1994) ........................................................... 15
United States v. Gray, 883 F.2d 320 (4th Cir.1989) ..................................................................... 17
United States v. Gregory, 79 F.3d 973 (10th Cir. 1996) ........................................................ 12, 14
United States v. Holmes, 505 F.3d 1288 (D.C. Cir. 2007) ........................................................... 12
United States v. McCarthur, 6 F.3d 1270 (7th Cir. 1993) ............................................................ 17
United States v. Orocio, 645 F.3d 630 (3d Cir. 2011) ............................................................ 28, 29
United States v. Perez, 37 F.3d 510 (9th Cir. 1994). ...................................................................... 8
United States v. Washington, 387 F.3d 1060 (9th Cir. 2004) ...................................................... 12
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State Court Cases
Denisyuk v. State, 30 A.3d 914 (Md. 2011) ............................................................................ 27, 28
Derricott v. State, 611 A.2d 592 (Md. 1992) ................................................................................ 10
Ferris v. State, 735 A.2d. 491 (Md. 1999). ................................................................. 9, 10, 17, 19
Ex parte Obi, 446 S.W.3d 590 (Tex. App. 2014) ......................................................................... 24
People v. Carrera, 940 N.E.2d 1111 (Ill. 2010) ........................................................................... 23
People v. De Jesus, 935 N.Y.S.2d 464 (N.Y. Sup. Ct. 2011) ................................................. 26, 28
People v. Guzman-Ruiz, 6 N.E.3d 806 (Ill. App. Ct. 2014) ......................................................... 23
State v. Evans, 711 N.E.2d 761 (Ohio App. Ct. 1998) ................................................................. 11
State v. Gomez, 275 P.3d 1073 (Utah Ct. App. 2012) .................................................................. 16
State v. Rutherford, 639 N.E.2d 498 (Ohio App. Ct. 1994). ......................................................... 19
United States v. Akinsade, 686 F.3d 248 (4th Cir. 2012) ............................................................. 23
Wells v. Miami Valley Hosp., 631 N.E.2d 642 (Ohio App. Ct. 1993) .......................................... 22
United States Constitution Provisions
U.S. CONST. amend. IV ................................................................................................................... 7
U.S. CONST. amend. VI ................................................................................................................. 19
United States Statutes
8 U.S.C. §§ 1101(a)(43)(B) (2012) ............................................................................................... 21
8 U.S.C. § 1227(a)(2)(B)(i) (2012). .................................................................................. 21, 23, 24
8 U.S.C. § 1228(a) (2012) ............................................................................................................. 21
State Statutes
Eg. Stat. § 841(b) .......................................................................................................................... 29
Secondary Authority
AMERICAN BAR ASSOCIATION, STANDARDS FOR CRIMINAL JUSTICE, PROSECUTION FUNCTION AND DEFENSE FUNCTION (3d ed. 1993) .................................... 24
U.S. SENTENCING COMM’N,
2014 SOURCEBOOK OF FEDERAL SENTENCING STATISTICS (2014) .......................................... 29
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CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The Fourth Amendment of the United States Constitution
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Sixth Amendment of the United States Constitution
In 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, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
8 U.S.C. § 1101(a)(43)(B)
(43) The term “aggravated felony” means— (B) illicit trafficking in a controlled substance (as defined in section 802 of title 21), including a drug trafficking crime (as defined in section 924(c) of title 18)
8 U.S.C. § 1227(a)(2)(B)(i)
(a) Classes of deportable aliens. Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens:
(2) Criminal Offenses (B) Controlled substances.
(i) Conviction. Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable.
8 U.S.C. § 1228(a)(2)-(3)
(2) Implementation With respect to an alien convicted of an aggravated felony who is taken into custody by the Attorney General pursuant to section 1226(c) of this title, the Attorney General shall,
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to the maximum extent practicable, detain any such felon at a facility at which other such aliens are detained. In the selection of such facility, the Attorney General shall make reasonable efforts to ensure that the alien’s access to counsel and right to counsel under section 1362 of this title are not impaired. (3) Expedited proceedings
(A) Notwithstanding any other provision of law, the Attorney General shall provide for the initiation and, to the extent possible, the completion of removal proceedings, and any administrative appeals thereof, in the case of any alien convicted of an aggravated felony before the alien’s release from incarceration for the underlying aggravated felony. (B) Nothing in this section shall be construed as requiring the Attorney General to effect the removal of any alien sentenced to actual incarceration, before release from the penitentiary or correctional institution where such alien is confined.
Eg. Stat. § 841(b)
(b) In the case of a violation of subsection (a) involving 5 grams or more of methamphetamine, its salts, isomers, and salts of its isomers or 50 grams or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers, such person shall be sentenced to a term of imprisonment which may not be less than 5 years and not more than 40 years.
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STATEMENT OF THE CASE
I. Traffic Stop and Search
On May 20, 2013 at around 6:10 p.m. Tomas Haverford was driving on Knudson Avenue
in Wampoke, Eagleton. R. at 3-4. Deputy David Sanderson of the Pawnee County Sheriff’s
Department noticed that Mr. Haverford’s front headlight was burnt out. R. at 4. The deputy
activated the lights on his squad car and Mr. Haverford pulled over immediately. R. at 7.
When Deputy Sanderson approached Mr. Haverford’s truck, Mr. Haverford asked if he
could leave and go home. R. at 11. Deputy Sanderson told Mr. Haverford that he was not
allowed to leave. R. at 11. Deputy Sanderson issued Mr. Haverford a citation for the burnt out
headlight. R. at 5.
Mr. Haverford once again asked Deputy Sanderson once again if he could go home. R. at
12. The deputy once again told Mr. Haverford that he could not go. R. at 12. He also told Mr.
Haverford to take his hands out of his pockets. R. at 12.
Deputy Sanderson believed that Mr. Haverford was nervous, that his upper body was
shaking, and that he had restricted pupils. R. at 4. Using a pupilometer he estimated that Mr.
Haverford’s pupils were approximately three millimeters. R. at 8. Deputy Sanderson asked Mr.
Haverford if he had been using drugs that night and Mr. Haverford said that he had only taken
prescription Adderall. R. at 12.
Mr. Haverford once again told the deputy that he was tired and that he wanted to go
home. R. at 12. He also explained that he was upset because Deputy Sanderson would not leave
him alone. R. at 12.
Deputy Sanderson did not observe Mr. Haverford driving in an erratic way, or in any way
that would have indicated that he was impaired. R. at 6. Deputy Sanderson did not observe or
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smell the odor of any intoxicants or drugs. R. at 7. Deputy Sanderson did not observe any
intoxicants or drugs in the truck. R. at 7. Deputy Sanderson did not observe any drug
paraphernalia in the truck. R. at 7. Deputy Sanderson did not notice that Mr. Haverford’s speech
was slurred or that Mr. Haverford had any trouble with his balance. R. at 7.
But, the deputy asked Mr. Haverford to perform field sobriety tests. R. at 5, 12. Mr.
Haverford agreed to take the field sobriety tests and he passed them all. R. at 5, 8. Mr. Haverford
did not show any clues of intoxication or impairment during the field sobriety tests. R. at 8.
After passing the field sobriety tests, Deputy Sanderson said, “Okay. Alright, you’re okay
to go. I’ll let you get on your way then.” R. at 14. Mr. Haverford went back to his truck and got
into the driver’s seat. R. at 9. Deputy Sanderson walked back towards his police car. R. at 5. As
Deputy Sanderson got to the driver’s side of his car, he wondered if Mr. Haverford would
consent to a search of his vehicle. R. at 5. So he approached Mr. Haverford’s truck again. R. at 5.
Twelve second passed between when Deputy Sanderson told Mr. Haverford he could go
and when he re-approached Mr. Haverford’s truck. R. at 5.
When Deputy Sanderson asked if he could talk to Mr. Haverford again, Mr. Haverford
replied with “Yes, Sir.” R. at 14. Deputy Sanderson asked if he could search the truck and Mr.
Haverford replied, “Why not. Yeah. Go ahead.” R. at 14. That search resulted in the recovery of
a plastic container containing methamphetamines. R. at 14.
During the entire stop the emergency lights were activated on Deputy Sanderson’s police
car. R. at 8. Deputy Sanderson had a marked police car, was in full police uniform, and was
carrying a gun. R. at 19.
Mr. Haverford filed a motion to suppress the evidence seized from his truck, which was
heard on June 19, 2013. R. at 2. At the suppression hearing Deputy Sanderson testified that
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restricted pupils might be caused by drug use. R. at 4. He admitted that he was not a drug
recognition expert and that he did not know what every drug did to a person’s pupils. R. at 8. He
also failed to bring the pupilometer he used on May 20, 2013 to the hearing. R. at 10. The trial
court held that Deputy Sanderson did not have reasonable suspicion to extend the traffic stop, R.
at 17, but the court went on to deny his motion to suppress. R. at 21.
II. Guilty Plea
On August 21, 2013, after the motion to suppress was denied, Mr. Haverford entered a
conditional plea of guilty to the charge of possession with intent to manufacture
methamphetamine, a deportable offense under the Immigration and Nationality Act. R. at 22-23,
25-26. During the plea hearing, Mr. Haverford, a native of Venezuela, was very concerned about
the possibility of deportation. R. at 22, 30. Before the plea was entered Mark Brendanawicz, Mr.
Haverford’s attorney, asked the court for more time because Mr. Haverford was very concerned
about deportation. R. at 24, 25. The court denied Brendanawicz’s request for more time. R. at 24.
After a thirty-minute recess, the trial court told Mr. Haverford, “there is a risk, if found
guilty of this crime, that you may be deported or denied admission.” R. at 25. Mr. Haverford then
pleaded guilty. R. at 25.
During the sentencing hearing, the State requested that Mr. Haverford be sentenced to ten
years, instead of the forty-year maximum, because of his lack of criminal history, the fact that he
expressed remorse for his crime, and because he was also “potentially facing deportation.” R. at
25-26. Brendanawicz asked the court to give Mr. Haverford probation. R. at 26. Brendanawicz
told Mr. Haverford that if he got probation that he would not be deported. R. at 30. The court
imposed a ten-year sentence. R. at 26.
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Consequently, on September 23, 2013, the Department of Homeland Security initiated
removal proceedings against Mr. Haverford as a result of his guilty plea. R. at 22. Mr. Haverford
filed a motion to withdraw his guilty plea, which was heard on October 16, 2013. R. at 27.
During that hearing, Brendanawicz testified that he only told Mr. Haverford “he might be
deported” and that there was a “strong risk” or “strong chance” of being deported. R. at 29.
Brendanawicz also told him that deportation was only a possibility if he went to jail and that he
was trying to get Mr. Haverford probation to prevent him from being deported. R. at 30.
Brendanawicz never informed Mr. Haverford that deportation was mandatory. R. at 28.
Brendanawicz also admitted that he was ignorant of immigration law. R. at 56. He had
never read the relevant immigration statutes. R. at 56. He also did not research the immigration
consequences of Mr. Haverford pleading guilty. R. at 28, 56. The furthest extent of
Brendanawicz’s “research” was to talk with federal prosecutors, who all said pleading guilty to
the charge “could” or “may” subject Mr. Haverford to deportation. R. at 28-29.
If Mr. Haverford had known that deportation was automatic he would not have pled
guilty. R. at 30. Although in his attorney’s opinion he had no viable defense for trial, Mr.
Haverford would have chosen to go to trial had he known that deportation was mandatory. R. at
30. Mr. Haverford testified that he would do anything not to have to return to Venezuela because
it is a dangerous country. R. at 30.
Mr. Haverford immigrated to the United States and became a lawful permanent resident
in 2003, at the age of nineteen. R. at 31. He has not been back to Venezuela since the day he
immigrated here. R. at 30. Although he is not married and has no children, Mr. Haverford’s
entire life and work is now rooted in the United States. R. at 30. During his more than twelve
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years here, Mr. Haverford has no prior criminal record and has opened his own business. R. at
29. Back in Venezuela he has no family and no job. R. at 30.
The trial court agreed that Mr. Haverford’s attorney was deficient in his representation of
Mr. Haverford. R. at 37. It ultimately denied the motion though, because, it found that Mr.
Haverford was not prejudiced as a result of Brendanawicz’s deficient performance. R. at 37.
III. Procedural History
Mr. Haverford appealed the trial court’s rulings on both the motion to suppress evidence
and the motion to withdraw his guilty plea. The Supreme Court of Eagleton held that the trial
court properly denied Mr. Haverford’s motion to suppress evidence and also held that Mr.
Haverford was not entitled to withdraw his guilty plea because his counsel did not act
deficiently. R. at 38-39. Mr. Haverford petitioned this Court for writ of certiorari on May 13,
2015. R. at 60. This Court granted Mr. Haverford’s petition for writ of certiorari to decide two
issues: (1) if the motion to suppress was properly denied; and (2) whether the court properly
refused to allow Mr. Haverford to withdraw his guilty plea. R. at 61.
SUMMARY OF THE ARGUMENT
Mr. Haverford had the right not to be subjected to field sobriety tests without reasonable
suspicion, the right not to be constructively seized, and the right not to have tainted evidence be
admissible against him at trial. He also had the right to withdraw his guilty plea after his counsel
gave him erroneous legal advice that prejudiced him. Because Mr. Haverford’s constitutional
rights were violated, this Court should reverse the judgment of the Supreme Court of Eagleton.
I. The trial court should have granted Mr. Haverford’s motion to suppress because
Deputy Sanderson illegally seized the evidence from his truck in violation of the Fourth
Amendment. Reasonable suspicion is necessary to extend a traffic stop beyond its original
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purpose. Deputy Sanderson did not have reasonable suspicion to extend the traffic stop for a
burnt out headlight to perform field sobriety tests on Mr. Haverford. He saw no signs of
impairment and did not have enough training to conclude whether Mr. Haverford was under the
influence of drugs. He was acting on a mere hunch, and therefore the extension of the traffic stop
was unlawful.
Mr. Haverford’s consent was not attenuated from the unlawful extension of the stop.
First, the temporal proximity – a mere twelve seconds between the unlawful stop and the consent
– weighs strongly against attenuation. Second, there were no significant intervening
circumstances between the stop and Mr. Haverford’s consent. Third, the flagrancy of the
officer’s conduct weighs against attenuation. Because Mr. Haverford’s consent was not
attenuated from the unlawful extension of the traffic stop, the evidence is inadmissible.
The evidence should also have been suppressed on the ground that Mr. Haverford was
constructively seized without reasonable suspicion at the time he gave consent. No reasonable
person would have felt free to leave after an officer told him multiple times that he had to stay
just minutes or seconds prior. Therefore, this Court should reverse the trial court’s denial of Mr.
Haverford’s motion to suppress because Mr. Haverford was constructively seized at the time he
gave consent.
II. This Court should vacate Mr. Haverford’s guilty plea because Brendanawicz’s
representation was ineffective in violation of the Sixth Amendment. A guilty plea should be set
aside because of the ineffective assistance of counsel when: (1) counsel’s performance was
deficient; and (2) the defendant was prejudiced as a result.
Brendanawicz’s advice that a guilty plea carried a “strong risk” of deportation was
legally deficient. When the law is clear, an attorney has a duty to give correct legal advice. The
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law is clear: Mr. Haverford was subject to automatic deportation after pleading guilty. Therefore,
Brendanawicz’s advice that Mr. Haverford only had a “strong chance” of deportation was
erroneous. Brendanawicz’s performance was also deficient because he failed to conduct even the
most basic research into Mr. Haverford’s deportation consequences even though he was ignorant
of the relevant immigration law.
Brendanawicz’s deficient legal advice prejudiced Mr. Haverford because he would not
have pleaded guilty had he known that deportation was automatic. To show prejudice, a
defendant must show it would have been rational to reject the plea bargain and go to trial. Mr.
Haverford has shown that it would have been rational for him to choose the risk of trial over the
certainty of deportation. First, Mr. Haverford has strong ties to the United States and his ties to
Venezuela are nonexistent. Second, Mr. Haverford testified that he would have insisted on going
to trial if he had known he was subject to automatic deportation. Finally, avoiding deportation
was more important to Mr. Haverford than a possible jail sentence. Mr. Haverford was
prejudiced as a result of Brendanawicz’s erroneous legal advice, and therefore this Court should
vacate Mr. Haverford’s guilty plea because he was denied effective representation of counsel.
ARGUMENT
I. This Court should reverse the judgment of the Supreme Court of Eagleton because the evidence was illegally seized in violation of the Fourth Amendment.
The evidence obtained from Mr. Haverford’s truck must be suppressed because it was the
fruit of an illegal seizure. The Fourth Amendment guarantees that individuals will not be
subjected to unreasonable searches and seizures. U.S. CONST. amend. IV. Mr. Haverford’s right
to be free from unreasonable searches and seizures was first violated when Deputy Sanderson
unlawfully extended a traffic stop to perform field sobriety tests. Mr. Haverford’s later consent
was not attenuated from this unlawful seizure, so the evidence found in his truck is inadmissible.
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His right was again violated when Deputy Sanderson re-approached him and constructively
seized him without reasonable suspicion in order to obtain consent to search his truck. Thus, the
evidence seized is inadmissible on this ground, as well. Therefore, as fruits of two unlawful
seizures, the evidence found in Mr. Haverford’s truck should be suppressed.
A. Deputy Sanderson did not have reasonable suspicion to extend the traffic stop for a burnt out headlight to perform field sobriety tests because he was acting only on an erroneous hunch that Mr. Haverford was intoxicated.
Deputy Sanderson’s extension of the traffic stop was not justified because he was acting
on a mere hunch that Mr. Haverford was intoxicated rather than reasonable suspicion. A traffic
stop that is extended past the time reasonably required to handle the matter for which the stop
was made violates the Fourth Amendment. Rodriguez v. United States, 135 S. Ct. 1609, 1612
(2015). An officer cannot expand the scope of a traffic stop unless additional suspicious factors
come to the officer’s attention. United States v. Perez, 37 F.3d 510, 513 (9th Cir. 1994). These
factors must give rise to reasonable suspicion, which is more than a mere “hunch.” Navarette v.
California, 134 S. Ct. 1683, 1687 (2014); Terry v. Ohio, 392 U.S. 1, 21-22 (1968). The
subjective, good faith of the officer is insufficient to warrant an intrusion; the officer must be
able to identify “specific and articulable facts” that give the officer reasonable suspicion of
criminal activity. Terry, 392 U.S. at 21. As the trial court held, the specific facts Deputy
Sanderson pointed to did not rise to the level of reasonable suspicion. There were innocent
explanations for Deputy Sanderson’s observations and Mr. Haverford did not show any signs of
intoxication. Therefore, this Court should hold that the traffic stop was unlawfully extended
because Deputy Sanderson was acting on a mere hunch rather than reasonable suspicion.
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1. Deputy Sanderson did not have reasonable suspicions because his observations describe almost every motorist that is pulled over for a traffic stop and do not indicate drug use.
Deputy Sanderson did not have reasonable suspicion because the limited observations he
made regarding Mr. Haverford were not narrow enough to eliminate a substantial number of
objectively innocent individuals. Factual circumstances that describe a large number of innocent
travelers cannot justify a seizure. Reid v. Georgia, 448 U.S. 438, 441 (1980). The facts taken
together must “eliminate a substantial portion of innocent travelers before the requirement of
reasonable suspicion will be satisfied.” Karnes v. Skrutski, 62 F.3d 485, 493 (3rd Cir. 1995). Mr.
Haverford displayed signs of nervousness, shaking and pupil restriction. On the totality of the
circumstances, those facts alone do not “eliminate a substantial portion of innocent travelers” or
give the officer reasonable suspicion.
In Ferris v. State, the officer noted that the defendant had bloodshot eyes, was nervous
and fidgety, and looked back at the officers several times. 735 A.2d. 491, 494 (Md. 1999). The
court held that the officer did not have reasonable suspicion to extend the traffic stop based on
those observations alone because they did not eliminate a substantial portion of innocent
travelers. Id. at 507-08. The court noted that the observation that an individual is nervous is an
“extremely subjective observation” and that bloodshot eyes have a variety of non-criminal
causes. Id. at 508-10.
Similar to Ferris, where the officer’s observations of the defendant’s eyes, nervousness
and fidgeting were not enough to create reasonable suspicion, id., Deputy Sanderson’s
observations of Mr. Haverford’s eyes, nervousness and shaking do not rise to the level of
reasonable suspicion. Deputy Sanderson’s observations that Mr. Haverford was nervous and
shaking are not indicative of criminal activity and do not eliminate a substantial portion of
10
innocent travelers. As the trial court aptly noted, police cannot expect to perform field sobriety
tests on every individual who shakes and appears nervous when stopped by police. R. at 16-17.
Additionally, the State did not provide enough evidence that restricted pupils are caused
by drug use. An officer must base his conclusion on an adequate factual basis, and his conclusion
“will be given no more weight than the foundation upon which it rests.” Derricott v. State, 611
A.2d 592, 597 (Md. 1992). Although Deputy Sanderson has approximately fifteen years of
experience, he testified that he was not a drug recognition expert and that he was unsure what
drugs caused pupil restriction. R. at 8. He was only able to estimate the size of Mr. Haverford’s
pupils. R. at 8. He failed to bring his pupilometer to court, R. at 10, which could have helped
determine how he concluded the size of Mr. Haverford’s pupils. Further, the State did not present
any definitive evidence on how drug use might affect pupil size. R. at 16. Deputy Sanderson
cannot just state that the factors were suspicious to him; he must offer the “factual basis upon
which he bases that conclusion.” Ferris, 735 A.2d. at 510 (citing Derricott, 611 A.2d at 597).
Based on Deputy Sanderson’s lack of training, failure to eliminate non-criminal reasons for the
restricted pupils and his failure to bring his pupilometer to court to explain how he came to his
estimation, there are not articulable facts that point to criminal activity or eliminate the innocent
explanations for his observations. Because Deputy Sanderson failed to articulate how the facts he
relied upon brought him to his conclusion, he did not have reasonable suspicion to extend the
traffic stop.
2. Deputy Sanderson did not have reasonable suspicion to extend the traffic stop to perform field sobriety tests because Mr. Haverford did not demonstrate any signs of intoxication.
Deputy Sanderson acted on a mere hunch because he did not observe any indicators that
Mr. Haverford was impaired by either drugs or alcohol prior to asking him to perform field
11
sobriety tests. An officer who is acting only on a mere hunch that criminal activity has occurred
does not have reasonable suspicion. Terry, 392 U.S. at 22. To justify the performance of field
sobriety tests, an officer must have reasonable suspicion of intoxication. State v. Evans, 711
N.E.2d 761, 766 (Ohio App. Ct. 1998). Having bloodshot eyes, being nervous, and acting fidgety
are insufficient facts to give an officer reasonable suspicion of intoxication. See Ferris, 735
A.2d. at 507-10.
The uncontroverted testimony of Deputy Sanderson at the suppression hearing was that
Mr. Haverford was not driving erratically and did not demonstrate any signs of intoxication
while driving his vehicle prior to being pulled over. R. at 6. After being pulled over, Deputy
Sanderson testified that he observed no drugs or alcohol in the truck. R. at 7. He smelled no odor
of drugs or alcohol coming from the truck. R. at 7. He saw no drug paraphernalia. R. at 7. He did
not notice any slurring of Mr. Haverford’s speech. R. at 7. He did not notice any problems with
Mr. Haverford’s balance. R. at 7. Therefore, without the presence of any factor that would have
indicated that Mr. Haverford was under the influence of alcohol or drugs, the deputy did not have
reasonable suspicion. Instead, Deputy Sanderson was acting on a mere hunch.
B. The illegal extension of the traffic stop tainted Mr. Haverford’s consent to search, making the evidence recovered from the search inadmissible.
The illegally seized evidence must be suppressed because the unlawful extension of the
traffic stop tainted Mr. Haverford’s consent to search his truck. When the fruits of an officer’s
investigation are obtained as a result of an illegal seizure, they are inadmissible unless the
challenged evidence is so attenuated that it dissipates the initial taint. Wong Sun v. United States,
371 U.S. 471, 487 (1963). Even if the consent is found to be voluntary, the Fourth Amendment
issue still remains if the consent is not sufficiently attenuated from the illegal seizure. Brown v.
Illinois, 422 U.S. 590, 601 (1975). The attenuation analysis relating to the seizure of evidence
12
considers three factors: (1) the temporal proximity of the official misconduct and the seizure of
evidence, (2) the presence of intervening circumstances, and (3) the purpose and flagrancy of the
official misconduct. Id. at 603-04 (citations omitted). The State bears the burden of proving
admissibility. Id. at 604.
Mr. Haverford’s consent was not attenuated from the unlawful extension of the traffic
stop because: (1) the consent was given almost immediately after the unlawful extension, (2)
there was not an intervening circumstance that would have lead a reasonable person to believe
that they were free to leave, and (3) the illegality was flagrant and had a quality of
purposefulness in that Deputy Sanderson was looking for a reason to search Mr. Haverford’s
truck throughout the entire stop even though he had no reasonable suspicion. Therefore, Mr.
Haverford’s consent was not sufficiently attenuated from the illegal seizure, and so the recovered
evidence is inadmissible.
1. Mr. Haverford’s consent was not attenuated because it was given in a threatening environment and almost immediately after the unlawful extension of the traffic stop.
A mere twelve seconds between Deputy Sanderson unlawfully extending the traffic stop
and re-approaching to ask for consent is grossly inadequate to attenuate the unlawful field
sobriety tests from Mr. Haverford’s consent to search. Consent is not valid when given seconds
or minutes after an illegal seizure. See, e.g., United States v. Holmes, 505 F.3d 1288, 1295 (D.C.
Cir. 2007) (few minutes insufficient amount of time); United States v. Washington, 387 F.3d
1060, 1073 (9th Cir. 2004) (fifteen minutes insufficient); United States v. Chanthasouxat, 342
F.3d 1271, 1280 (11th Cir. 2003) (three minutes insufficient); United States v. Gregory, 79 F.3d
973, 979 (10th Cir. 1996) (thirty-five seconds insufficient).
13
In Rawlings v. Kentucky, the Supreme Court noted that the time between the official
misconduct and Rawlings’ confession was approximately forty-five minutes. 448 U.S. 98, 107
(1980). The Court stated that “under the strictest of custodial conditions such a short lapse of
time might not suffice to purge the initial taint . . . .” Id. However, the Court indicated that the
existence of a congenial atmosphere might weigh in favor of attenuation. Id. In Rawlings, the
suspects offered the officers coffee, got up to turn on music, and joked with the officers. Id. at
107-08. The court found that these congenial circumstances were enough to outweigh the brevity
of the forty-five minutes between the official misconduct and the confession.
Unlike the interaction between the officers and suspects in Rawlings, the interaction
between Deputy Sanderson and Mr. Haverford was not congenial, and so the circumstances of
the stop do not outweigh the short amount of time for the purpose of the attenuation analysis. Mr.
Haverford was clearly agitated throughout the stop, expressing his desire to leave more than once
and reluctantly giving into the deputy’s requests. R. at 11-14. The only thing that kept Mr.
Haverford talking to Deputy Sanderson was the deputy’s assertion of authority. Deputy
Sanderson told Mr. Haverford two times that he could not leave. R. at 11-12. Thus, instead of
removing the taint of the illegal extension of the stop, the atmosphere between Deputy Sanderson
and Mr. Haverford demonstrated the deputy’s control and power over Mr. Haverford. Therefore,
the atmosphere created by Deputy Sanderson, in conjunction with the almost immediate request
for consent after the unlawful extension of the stop, weighs strongly against attenuation.
2. Mr. Haverford’s consent was not attenuated because there were no significant intervening circumstances that isolated his consent from the coercive effects of the illegal seizure.
There were no significant intervening circumstances that weigh in favor of attenuation
because Deputy Sanderson’s vague suggestion that the traffic stop was over paled in comparison
14
to his continuing show of authority. In applying the second factor in the attenuation analysis,
courts “look only from the defendant’s perspective in determining whether any intervening event
occurred which isolates the defendant from the coercive effects of the original illegal stop so as
to render his subsequent consent voluntary in fact.” United States v. Gregory, 79 F.3d at 980.
The only circumstance that occurred between the traffic stop and the request to search
was the deputy telling Mr. Haverford that he was “okay to go,” that he would let Mr. Haverford
“get on his way” and to “take care.” R. at 14. These phrases are not enough to be considered an
intervening circumstance for several reasons. First, it is clear from the circumstances of the
traffic stop that the deputy telling Mr. Haverford he could get on his way are not enough to
constitute a significant intervening event. The emergency lights on the police car were activated
during the entire traffic stop, including when Deputy Sanderson told Mr. Haverford he could be
on his way. R. at 8. They remained on as the deputy re-approached to ask for consent. R. at 8.
Mr. Haverford could only logically take this to mean that the traffic stop was not yet completed.
Additionally, Deputy Sanderson’s conduct throughout the entire stop indicated that Mr.
Haverford was obligated to stay. Several times throughout the duration of the initial stop Mr.
Haverford expressed his desire to go home and asked Deputy Sanderson if he could leave. R. at
11, 12. Deputy Sanderson said no. R. at 11, 12. Because the totality of the circumstances
surrounding the stop indicated that Mr. Haverford was not actually free to leave, the mere
utterance of the words “you’re okay to go” and “take care” do not act as an intervening act.
Therefore this factor also weighs against attenuation.
Further, if all it took to attenuate official misconduct from consent to search a vehicle
were the words “take care” or “you’re free to go” it would create a loophole that law
enforcement officers would readily exploit. An officer without reasonable suspicion could get a
15
second bite at the apple just because he or she uttered a few words. Such a result would be
absurd and would not adequately allow an individual’s Fourth Amendment right to be protected
from unreasonable police intrusion.
3. Mr. Haverford’s consent was not attenuated because Deputy Sanderson was acting with the intent to get Mr. Haverford to consent to the search even though he had no reasonable suspicion of criminal activity.
The purpose and flagrancy of the official misconduct weigh strongly against attenuation
because Deputy Sanderson, with no reasonable suspicion, acted purposefully in getting Mr.
Haverford to consent to the search. An officer’s misconduct is flagrant when the illegal seizure
has a quality of purposefulness because it is based only on a mere hunch of criminal activity and
the officer only has “the hope that something might turn up.” United States v. Fernandez, 18
F.3d 874, 883 (10th Cir. 1994) (quoting Brown, 422 U.S. at 605).
It was clear from the start of the traffic stop that Deputy Sanderson was looking for an
indicator of drug use or criminal activity by Mr. Haverford. Based on no reasonable suspicion
and a mere hunch that Mr. Haverford was under the influence of drugs, the deputy asked Mr.
Haverford to perform field sobriety tests. When Mr. Haverford passed every single one of those
tests Deputy Sanderson reluctantly told Mr. Haverford, “Okay. Alright, you’re okay to go.” R. at
14. His reluctance to let Mr. Haverford “go” demonstrates that Deputy Sanderson did not want
the traffic stop to be over. Further, the clear purpose of the request to search the truck was that
the deputy wanted to continue investigating his hunch that Mr. Haverford was under the
influence of drugs. As Deputy Sanderson was walking back to the truck after his suspicions of
drug use were not confirmed, he was wondering if Mr. Haverford would let him search the truck.
R. at 5. His purpose was to find drugs. Therefore, the purpose and flagrancy of the official
misconduct weigh against attenuation.
16
C. Mr. Haverford was constructively seized without reasonable suspicion when Deputy Sanderson re-approached him twelve seconds after the initial seizure because no reasonable person would have felt free to leave.
The evidence seized as a result of the search should also be suppressed because Mr.
Haverford was constructively seized without reasonable suspicion when Deputy Sanderson asked
for permission to search his truck. A person is constructively seized if a reasonable person would
not have believed that he was free to leave or that he could ignore the requests of the police.
United States v. Mendenhall, 446 U.S. 544, 554 (1980). Deputy Sanderson’s conduct during the
stop, the circumstances surrounding the stop, and the short time between the initial stop and the
deputy’s request for consent to search all indicate that Mr. Haverford was constructively seized
without reasonable suspicion when he gave consent.
1. Deputy Sanderson did not have reasonable suspicion because the field sobriety tests just revealed that Mr. Haverford was not under the influence of drugs or alcohol.
The lack of reasonable suspicion at the time of the request to search the truck is clear
because Deputy Sanderson had just administered field sobriety tests, which Mr. Haverford
passed. Once any suspicion is dispelled, “without additional reasonable suspicion, the officer
must allow the seized person to depart . . . .” State v. Gomez, 275 P.3d 1073, 1076 (Utah Ct. App.
2012). At the time Deputy Sanderson decided to re-approach the truck he had no reason to
believe, nor articulable circumstance, that Mr. Haverford had committed a crime. Quite the
opposite, he had just verified through field sobriety tests that Mr. Haverford was not under the
influence of drugs or alcohol. R. at 8. Because any suspicion the deputy may have had was
dispelled by the field sobriety tests, he did not have reasonable suspicion at the time Mr.
Haverford gave consent.
17
2. Mr. Haverford was constructively seized because any reasonable person would believe the initial traffic stop was still ongoing once Deputy Sanderson re-approached the truck.
Mr. Haverford was constructively seized because no reasonable person would feel free to
leave when the deputy re-approached to ask additional questions relating to the initial stop.
Factors that might indicate a seizure, even where the person did not attempt to leave, include –
but are not limited to – the display of a weapon by an officer, the use of language or tone of
voice indicating that compliance with the officer's request might be compelled, whether the
police were in uniform, whether the person was informed that he was suspected of a crime,
whether the person was told he was free to go, and the threatening behavior of the officers.
Mendenhall, 446 U.S. at 554; Ferris, 735 A.2d at 502 (citing United States v. McCarthur, 6 F.3d
1270, 1275-76 (7th Cir. 1993); United States v. Gray, 883 F.2d 320, 322 (4th Cir.1989)).
Deputy Sanderson’s statements to Mr. Haverford show that a reasonable person would
not feel free to leave. At least three times during the initial stop Mr. Haverford told the deputy
that he was tired and wished to go home. R. at 11-14. At least two times Deputy Sanderson
informed him that he could not leave and that he had to stay put. R. at 11-14. A reasonable
person who had been told more than once by a police officer that he could not leave would not
reasonably feel that he was free to leave once the officer re-approached to ask another question.
Additionally, the deputy’s questions when he re-approached Mr. Haverford indicated that
he was following up on his suspicions in continuation of the traffic stop and his questions were
also accusatory. During the initial stop, the deputy asked Mr. Haverford if had taken any drugs.
R. at 12. Right before he asked for consent, Deputy Sanderson asked Mr. Haverford if he had
anything on him that the he should know about. R. at 14. Because of the temporal proximity to
the initial stop, the deputy’s questions right before asking to search the truck clearly relate back
18
to his earlier accusations of drug use. Because the deputy seemed to be following up on his
hunch that Mr. Haverford was under the influence of drugs, no reasonable person would feel free
to leave, especially when told multiple times during the initial “investigation” that he was in fact
not free to leave.
Further, the emergency lights on Deputy Sanderson’s police car were activated the entire
time of the stop: during the initial stop when Mr. Haverford was told that he could not leave
multiple times and when Deputy Sanderson re-approached and asked to speak to Mr. Haverford
again. R. at 8. Further, the deputy was in a fully marked police car, in a full uniform, and
carrying a weapon. R. at 19. The appearance of the deputy and the activated emergency lights
demonstrated a power and control over Mr. Haverford that would make any reasonable person
feel that he or she could not have ignored Deputy Sanderson’s request.
Mr. Haverford stepping out of his truck when Deputy Sanderson re-approached indicates
that he did not feel free to leave, as well. This action is important for two reasons. First, had Mr.
Haverford felt that he could ignore the deputy by leaving, there would have been no reason for
him to have stepped out of his truck. He could have driven off and gone to bed like he had
expressed that he wanted to multiple times. Second, the fact that he got out of his truck against
his stated desire to go home makes this entirely different than a congenial encounter where a
police officer walks up to an individual on the street to engage in conversation.
Finally, the extremely short amount of time between the unlawful extension of the traffic
stop and the consent given by Mr. Haverford makes it more likely that Mr. Haverford did not
feel that he was free to leave. Only twelve seconds had passed between the deputy requiring Mr.
Haverford to perform field sobriety tests and him re-approaching. There is no way that Mr.
Haverford would have felt free to leave in these circumstances: “It strains credulity to imagine
19
that any citizen, directly on the heels of having been pulled over to the side of the road by armed
and uniformed police hosts in marked patrol cars, would ever feel ‘free to leave’ or ‘at liberty to
ignore the police . . . .’” Ferris, 735 A.2d. at 504-05 (quoting State v. Rutherford, 639 N.E.2d
498, 507 (Ohio App. Ct. 1994)). In light of the temporal proximity between the initial stop –
where Mr. Haverford was told several times that he was required to stay – and his consent to a
search, no reasonable person in Mr. Haverford’s circumstances would have felt free to leave or
ignore Deputy Sanderson’s requests to search the truck. Therefore, this Court should reverse the
judgment of the Supreme Court of Eagleton because it erroneously affirmed the trial court’s
denial of Mr. Haverford’s motion to suppress evidence.
II. This Court should vacate Mr. Haverford’s guilty plea because his counsel’s representation was ineffective in violation of the Sixth Amendment.
This Court should hold that Mr. Haverford was prejudiced by the deficient performance
of his counsel in violation of the Sixth Amendment. The Sixth Amendment guarantees criminal
defendants the right to effective assistance of competent counsel. U.S. CONST. amend. VI;
McMann v. Richardson, 397 U.S. 759, 771 (1970). This right applies to the plea-bargaining
process. Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012). Mr. Haverford was denied the effective
assistance of competent counsel when he decided to accept the State’s plea agreement because he
was “left to the mercies of incompetent counsel . . . .” Richardson, 397 U.S. at 771.
A guilty plea is invalid under the Sixth Amendment when: (1) counsel’s performance was
deficient; and (2) he was prejudiced as a result. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985);
Strickland v. Washington, 466 U.S. 668, 687 (1984). Mr. Haverford was guaranteed the effective
assistance of counsel for advice relating to deportation consequences. Padilla v. Kentucky, 559
U.S. 356, 366 (2010). First, Brendanawicz’s performance was deficient because he failed to
inform Mr. Haverford that deportation was presumptively mandatory based on the offense
20
charged. His performance was also deficient because he based his advice on mere speculation
about what the deportation consequences were. Second, Brendanawicz’s deficient performance
prejudiced Mr. Haverford because Mr. Haverford was very worried about being deported and
would not have pleaded guilty had he known deportation was presumptively mandatory.
Therefore, Mr. Haverford was denied effective assistance of counsel, and this Court should
vacate his guilty plea.
A. The performance of Mr. Haverford’s counsel was deficient because he gave Mr. Haverford erroneous advice and his conduct fell outside prevailing professional norms.
Brendanawicz’s performance was deficient because he misstated the law when the law
was clear. When the law is clear, an attorney’s “duty to give correct advice is equally clear.”
Padilla, 559 U.S. at 369. An attorney’s performance is measured by how reasonable it is under
prevailing professional norms. Strickland, 466 U.S. at 688. Because deportation is an especially
severe consequence of a criminal conviction, it is critical that attorneys inform their clients about
the removal consequences of pleading guilty. Padilla, 559 U.S. at 373.
Brendanawicz’s performance was deficient for three reasons. First, Brendanawicz gave
incorrect advice to Mr. Haverford when he told him that there was only a “strong chance” that he
would be deported rather than telling him that deportation was presumptively mandatory.
Second, Brendanawicz incorrectly advised Mr. Haverford that he would not be deported if he
were sentenced to only probation. Third, Brendanawicz’s conduct fell outside prevailing
professional norms because he counseled Mr. Haverford concerning the deportation
consequences of pleading guilty even though he remained ignorant of the relevant immigration
law.
21
1. The removal statute makes it clear that Mr. Haverford’s deportation was presumptively mandatory, so it was legally deficient for Brendanawicz to advise him that there was only a “strong chance” of deportation.
Mr. Haverford did not have effective assistance of counsel because Brendanawicz did not
give Mr. Haverford precise and accurate information on the deportation consequences of his
plea. Before a defendant enters a guilty plea, he must have “a full understanding of what the plea
connotes and of its consequence.” Boykin v. Alabama, 395 U.S. 238, 244 (1969). When a
criminal conviction carries a risk of deportation, an attorney is obligated to accurately inform the
client of his or her risk of being deported. Padilla, 559 U.S. at 374. When the removal statute
makes it clear that deportation is presumptively mandatory, it is equally clear that an attorney
must inform his client of precisely this: that deportation is presumptively mandatory. Id. at 369.
It is only when the deportation consequences are unclear that an attorney is simply required to
advise his client about the general risks of removal. Id. In essence, the degree of clarity in the
law “will affect the scope and nature of counsel’s advice.” Id. at 369 n.10.
The removal statute explicitly requires deportation in Mr. Haverford’s case, so it was his
attorney’s duty to inform him of this. Id. at 368-69. Any alien convicted of a violation of a law
relating to a controlled substance, other than simple possession of marijuana, is deportable. 8
U.S.C. § 1227(a)(2)(B)(i) (2012). Although the trial court reasoned that the statute allows for
prosecutorial discretion, R. at 49, the statute expressly prohibits prosecutorial discretion: The
Attorney General shall detain a felon convicted of an aggravated felony, such as trafficking in a
controlled substance, and shall initiate, expedite, and complete removal proceedings. See 8
U.S.C. §§ 1101(a)(43)(B), 1228(a)(2)-(3). By merely reading these statutes, a competent attorney
can easily determine that deportation is presumptively mandatory once a defendant pleads guilty
to the charge of trafficking in a controlled substance. See Padilla, 559 U.S. at 369. Mr.
22
Haverford’s attorney therefore had the duty to give correct advice because the deportation
consequence was clear – it was evident by a mere reading of the statute. See id. In contrast to Mr.
Haverford’s case, there are some cases where the deportation consequences are not so clear; for
example, in some cases deportation hinges on whether the offense is a crime that involves moral
turpitude. Id. at 379 (Alito, J., concurring). This Court’s holding in Padilla takes into account
these cases by broadly requiring an attorney to advise his client whether a guilty plea “carries a
risk of deportation.” However, for the specific removal statute at issue here, this Court made it
clear that Brendanawicz was required to advise Mr. Haverford that pleading guilty would make
Mr. Haverford “subject to automatic deportation.” Id. at 360.
Given the clarity in the law – that the removal of Mr. Haverford was presumptively
mandatory – it was legally deficient for Brendanawicz to advise Mr. Haverford that there was
only a “strong chance” of deportation. This Court has made a distinction between cases like Mr.
Haverford’s and cases where the defendant is not automatically deportable. The Court has
explicitly drawn a distinction in the levels of certainty about deportation that an attorney must
express to his client. As such Bredanawicz’s advice was legally deficient because it did not
inform Mr. Haverford that he was subject to automatic deportation. Informing Mr. Haverford
that he only had a “strong chance” of being deported is a vastly different level of certainty than
informing him that deportation is “presumptively mandatory.” Strong chance brings to mind
probabilities and a level of uncertainty: “[W]e cannot say that a ‘very strong chance’ is greater
than fifty percent [probability] any more than we can say the opposite is true. . . . ‘very strong
chance,’ unmodified, is too speculative to accurately state in terms of probability.” Wells v.
Miami Valley Hosp., 631 N.E.2d 642, 651 (Ohio App. Ct. 1993). Even more so, “strong chance”
fails to accurately convey “presumptively mandatory.” Because these phrases convey vastly
23
different levels of certainty, and because the law is clear that Mr. Haverford was deportable,
Bredanawicz’s advice was legally deficient. See Padilla, 559 U.S. at 369.
Further, the trial court’s admonishment did not overcome Brendanawicz’s erroneous
advice to Mr. Haverford, and the prosecutor’s and Brendanawicz’s comments at the plea hearing
just confused the issue more. During the plea hearing, the judge, prosecutor, and Brendanawicz
all repeatedly described Mr. Haverford’s risk of deportation as merely a possibility. R. at 25-26.
These equivocal statements concerning Mr. Haverford’s deportation consequences are an even
further deviation from “presumptively mandatory.” These comments only minimized Mr.
Haverford’s concerns about deportation and reinforced Brendanawicz’s deficient advice. See
People v. Guzman-Ruiz, 6 N.E.3d 806, 811 (Ill. App. Ct. 2014) (holding that the trial court’s
admonishment did not overcome counsel’s deficient advice for these very same reasons). As
such, Brendanawicz’s deficient advice was not cured by the trial court’s admonishment. See
United States v. Akinsade, 686 F.3d 248, 254 (4th Cir. 2012) (holding that the severity of
deportation consequences requires a specific and unequivocal admonishment by the trial court to
overcome the deficient advice of counsel). Therefore, it was legally deficient for Brendanawicz
to advise Mr. Haverford that there was only a “strong chance” of deportation.
2. The removal statute makes it clear that Mr. Haverford is deportable even if he is sentenced to probation, so it was incorrect for Brendanawicz to advise him that he would only be deported if he went to jail.
Brendanawicz’s advice was deficient because he incorrectly advised Mr. Haverford that
deportation depends on the sentence imposed. Under the relevant removal statute, even if Mr.
Haverford were sentenced to probation as a result of his guilty plea, he would still be deportable.
See 8 U.S.C. § 1227(a)(2)(B)(i) (an alien is deportable after being convicted of a violation); see
also People v. Carrera, 940 N.E.2d 1111, 1112 (Ill. 2010) (case involving a defendant who was
24
only sentenced probation but still had deportation proceedings initiated against him); Ex parte
Obi, 446 S.W.3d 590, 600 (Tex. App. Ct. 2014) (finding that defendant faced deportation even if
he only received probation). Brendanawicz told Mr. Haverford that he would not be deported if
he received probation. R. at 30. He told Mr. Haverford that he could only be deported if he went
to jail. R. at 30. Brendanawicz also told Mr. Haverford that he was working on getting Mr.
Haverford only probation. R. at 30. Thus, if Mr. Haverford pleaded guilty and his attorney
succeeded at getting him probation, then according to Brendanawicz, Mr. Haverford would not
be deported. This is simply erroneous advice. See 8 U.S.C. § 1227(a)(2)(B)(i).
3. Brendanawicz’s conduct fell outside prevailing professional norms because he counseled Mr. Haverford concerning the deportation consequences of pleading guilty even though he remained completely ignorant of the relevant immigration law.
By remaining ignorant of the relevant immigration law when he counseled Mr. Haverford
about the removal consequences of pleading guilty, Brendanawicz was deficient in his
performance as counsel. An attorney who is ignorant of a point of law that is fundamental to his
case yet fails to conduct even the most basic research on that point is a quintessential example of
deficient performance. Hinton v. Alabama, 134 S. Ct. 1081, 1089 (2014). Conduct falling outside
prevailing professional norms is deficient performance. Strickland, 466 U.S. at 688. The
American Bar Association’s standards for attorney conduct are useful guides to determine what
is reasonable under prevailing professional norms. Id. Defense counsel should be fully informed
of the law and advise his or her client with complete candor, including an honest estimate of the
likely outcome. AMERICAN BAR ASSOCIATION, STANDARDS FOR CRIMINAL JUSTICE,
PROSECUTION FUNCTION AND DEFENSE FUNCTION § 4-5.1(a) (3d ed. 1993). Defense counsel
should also not understate or overstate the risks of the case to unduly influence his or her client’s
decision on how to plead. Id. § 4-5.1(b).
25
Brendanawicz’s performance was deficient because he was ignorant of immigration law
– and remained ignorant of immigration law – when he advised Mr. Haverford regarding the
removal consequences of pleading guilty. R. at 28, 56. Brendanawicz did not conduct any
research on immigration law. R. at 28. He did not consult with an immigration attorney. R. at 56.
He did not even read the removal statute before advising Mr. Haverford about his deportation
consequences. R. at 56. This is deficient performance. See Hinton, 134 S. Ct. at 1089.
Instead, Brendanawicz merely sought the advice of federal prosecutors despite the fact
that they did not even practice immigration law or have any incentive to give him precisely
accurate advice. R. at 56. In fact, they did not give him accurate advice; these federal prosecutors
only told him that Mr. Haverford’s guilty plea “could” or “may” lead to deportation. R. at 28.
However, after only being told that it could lead to deportation, Brendanawicz then advised Mr.
Haverford that there was a strong chance of deportation. Since no one ever used the phrase
“strong chance” except Brendanawicz, the only explanation is that he exaggerated the advice he
received from the federal prosecutors. He could have easily exaggerated in the opposite direction
and advised Mr. Haverford that there was a slim chance of deportation. When Brendanawicz
advised Mr. Haverford that he had a strong chance of being deported, then, he actually had no
basis whatsoever for offering this advice. He did not research the relevant immigration law
himself and all anyone told him was that Mr. Haverford pleading guilty “could” lead to
deportation. R. at 28-29. Brendanawicz’s conduct fell outside prevailing professional norms
because he advised Mr. Haverford about the deportation consequences of pleading guilty even
though he remained completely ignorant of the relevant immigration law. Therefore, Mr.
Haverford has satisfied the first prong of Strickland because Brendanawicz’s performance was
deficient.
26
B. Brendanawicz’s deficient performance prejudiced Mr. Haverford because he would not have pleaded guilty had he known deportation was presumptively mandatory.
Brendanawicz’s deficient performance prejudiced Mr. Haverford because Mr. Haveford
would have gone to trial had he known deportation was automatic after pleading guilty. To show
prejudice, a defendant need only show a reasonable probability that he would have insisted on
going to trial rather than plead guilty if it were not for his attorney’s deficient advice. Hill, 474
U.S. at 59. “A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. This standard of proof is lower than a preponderance of
the evidence. Id. A defendant must show that “a decision to reject the plea bargain would have
been rational under the circumstances.” Padilla, 559 U.S. at 372. It would have been rational for
Mr. Haverford to reject the plea bargain because: (1) Mr. Haverford has strong ties to the United
States and his ties to Venezuela are nonexistent; (2) he testified that he would have gone to trial
had he been told deportation was automatic; and (3) the chance to avoid deportation by being
acquitted at trial is worth the risk of any potential prison sentence.
1. Mr. Haverford’s strong ties to the United States and nonexistent ties to Venezuela indicate that it would have been rational for him to insist on going to trial rather than plead guilty.
Mr. Haverford would have rejected the plea bargain in favor of any chance to avoid
deportation because of his strong ties to the United States. A defendant’s family and employment
ties to both the United States and the defendant’s country of origin are relevant to whether it
would have been rational for the defendant to reject a plea bargain. People v. De Jesus, 935
N.Y.S.2d 464, 474 (N.Y. Sup. Ct. 2011) (holding that it would have been rational for the
defendant to reject a plea bargain because of her strong ties to the United States). Mr. Haverford
has lived in the United States for more than twelve years. R. at 29. During his time here, he has
27
worked hard and now owns his own business. R. at 29. His entire life is here; in Venezuela he
has nothing. R. at 30. All of his family has left, and he has no job to return to. R. at 30.
Venezuela is also a much more dangerous country, so even staying alive there is not as certain.
R. at 30. Therefore, because Mr. Haverford has strong ties to the United States and no ties to
Venezuela, it would have been rational for him to reject the plea bargain and insist on going to
trial if his attorney had given him correct advice.
2. Mr. Haverford in fact testified that he would have insisted on going to trial rather than plead guilty if his attorney had given him correct advice.
There is a reasonable probability that Mr. Haverford would have rejected the plea bargain
and gone to trial because that is exactly what he testified he would have done. A defendant’s
sworn statement that he would have gone to trial had he known deportation was automatic
establishes that there is a reasonable probability that he would have done so. Denisyuk v. State,
30 A.3d 914, 930 (Md. 2011) (holding that defendant was prejudiced solely because his sworn
testimony was that he would have gone to trial if he had been given correct advice). At the
postconviction motion hearing, Mr. Wyatt, Mr. Haverford’s new attorney, asked Mr. Haverford
directly, “If you had known that your deportation was automatic, would you have pleaded
guilty?” R. at 30. Mr. Haverford’s unequivocal response was “No. I don’t want to be deported. I
would have tried to find some way to stay here. I would have told my attorney that I wanted to
go to trial and I never would have pled guilty.” R. at 30. The sworn testimony of Mr. Haverford
is that he would not have pleaded guilty if his attorney had given him correct advice. This makes
it a reasonable probability that he would have done just that had he been advised that deportation
was automatic. See Denisyuk, 30 A.3d at 930.
Although the trial court noted that there was substantial evidence against Mr. Haverford
and it took that into consideration when coming to its determination, R. at 36, focusing on the
28
amount of evidence and the potential outcome at trial is not the correct standard to apply. See id.
at 929 (holding that the State’s focus on the “overwhelming evidence” against the defendant and
his inevitable conviction is inappropriate for the prejudice inquiry); see also De Jesus, 935
N.Y.S.2d at 477 (holding that it would have been rational for the defendant to reject a plea
bargain even though she had only a slight chance of acquittal). The appropriate determination is
not whether a defendant would ultimately be convicted at trial but instead whether he would
have insisted on going to trial had he been given correct advice. Denisyuk, 30 A.3d at 930. Mr.
Haverford testified that he would have gone to trial. R. at 30. Therefore, there was a reasonable
probability that he would have rejected the plea bargain and insisted on going to trial if his
attorney had given him correct advice.
3. Avoiding deportation was worth the risk of any potential prison sentence to Mr. Haverford.
If Mr. Haverford had been advised about his near-certain deportation, it would have been
rational for him to reject the plea bargain because the consequence of deportation was more
severe and much less favorable than a possible prison sentence to Mr. Haverford. As this Court
has recognized, in the eyes of an alien defendant, avoiding deportation may be more important
than any potential jail sentence. INS v. St. Cyr, 533 U.S. 289, 322 (2001).
In United States v. Orocio, the Third Circuit held that a defendant was prejudiced by the
deficient performance of his attorney. 645 F.3d 630, 645 (3d Cir. 2011), abrogated in part on
other grounds by Chaidez v. United States, 133 S. Ct. 1103 (2013). In Orocio, the noncitizen
defendant accepted a plea bargain without being advised that he was subject to “near-certain
removal” for pleading guilty to a controlled substance offense. Id. at 641-42. Even though the
defendant faced a ten-year minimum sentence for his drug charge if convicted at trial, the court
held that it would have been rational for the defendant to reject the plea bargain and go to trial
29
for the chance of being acquitted and avoiding deportation. Id. at 645. The court noted that for an
offense with “presumptively mandatory” removal consequences, it is not at all unreasonable for a
defendant to go to trial and risk a ten-year sentence for the chance to be acquitted and remain in
the United States. Id. Because a defendant who pleads guilty is going to be deported anyways, it
creates a powerful incentive for the defendant to reject the plea agreement and go to trial. Id.
Thus, the court held that it is rational for a defendant to be more concerned about near-certain
deportation than the possibility of spending only a decade in prison. Id.
Just as it would have been rational for the defendant in Orocio to reject the plea bargain
and risk a potential prison sentence, so too would it have been rational for Mr. Haverford to
reject the plea bargain if his attorney had given him correct advice. Mr. Haverford’s drug charge
carries a minimum five-year prison sentence. Eg. Stat. § 841(b). Even though the maximum
sentence is forty years, id., the likelihood that Mr. Haverford would have received the maximum
sentence if convicted at trial is probably unlikely. While there are no available statistics for the
Eagleton criminal justice system, the average federal prison sentence in 2014 for a defendant
with a Level I criminal history convicted of drug trafficking was approximately four years and
five months. U.S. SENTENCING COMM’N, 2014 SOURCEBOOK OF FEDERAL SENTENCING
STATISTICS, TABLE 14 (2014), http://www.ussc.gov/sites/default/files/pdf/research-and-
publications/annual-reports-and-sourcebooks/2014/Table14.pdf. Mr. Haverford does not have a
prior criminal record, he is a productive member of society, he owns his own business, and he
expressed remorse for his crime. R. at 25-26, 29. The State recommending and the trial court
imposing a ten-year sentence further reflect the inappropriateness of a forty-year prison sentence
in Mr. Haverford’s case. R. at 26. Since the Orocio court found it rational for the defendant to
risk a ten-year prison sentence to avoid deportation, and Mr. Haverford would have realistically
30
been risking roughly the same sentence, it would also have been rational for him to insist on
going to trial. Mr. Haverford has satisfied the second prong of Strickland because he was
prejudiced by Brendanawicz’s deficient advice. Therefore, this Court should vacate Mr.
Haverford’s guilty plea because he was denied the effective assistance of counsel.
CONCLUSION
For the foregoing reasons, Mr. Haverford respectfully requests that this Court reverse the
judgment of the Eagleton Supreme Court and instead hold that: (1) the evidence obtained from
the unlawful search of Mr. Haverford’s truck should have been suppressed, and (2) Mr.
Haverford should have been allowed to withdraw his guilty plea because his counsel’s
representation was ineffective.
Respectfully submitted,
______Team 7________
Counsel for Petitioner Dated: February 1, 2016