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Docket No. 2015-01
In the
Supreme Court of the United States
Tomas Haverford,
Petitioner,
v.
State of Eagleton,
Respondent.
ON WRIT OF CERTIORARI TO THE
SUPREME COURT OF EAGLETON
BRIEF FOR RESPONDENT
Team No. 24
Counsel for Respondent
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QUESTIONS PRESENTED
I. Did Deputy Sanderson’s search of Petitioner’s vehicle after Petitioner consented to a search
violate the Fourth Amendment right to be free of unreasonable searches and seizures?
II. Did Attorney Brendanawicz’s assertion concerning Petitioner’s risk of deportation upon
conviction amount to a violation of Petitioner’s Sixth Amendment right to counsel?
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TABLE OF CONTENTS
QUESTIONS PRESENTED ................................................................................................ i
TABLE OF AUTHORITIES .............................................................................................. iv
CONSTITUTIONAL PROVISIONS OR STATUTES INVOLVED ............................... vii
STATEMENT OF THE CASE ........................................................................................... 1
SUMMARY OF THE ARGUMENT .................................................................................. 4
ARGUMENT ...................................................................................................................... 6
I. The Evidence Found During a Search of Petitioner’s Vehicle After Petitioner Consented to a Search Should Not Be Suppressed Because Petitioner’s Consent Was Not Tainted by Any Unlawful Seizure. ........................................................................... 6
A. Petitioner’s Behavior and Indications of Drug Use Provided Reasonable Suspicion for a Lawful Seizure of Petitioner for Field Sobriety Tests. ...................... 6
1. Reasonable Suspicion is a Flexible Standard That Defers to Officer’s Inferences and Judgment and Does Not Require a Large Showing of Proof. ......... 7
2. Petitioner’s Extreme Nervousness, Evasive Behavior, Symptoms of Drug Use, and Admissions of Prescription Drug Use Provided Reasonable Suspicion for a Seizure. ............................................................................................................ 8
B. Even If the Seizure of Petitioner for Field Sobriety Tests Was Unlawful, Suppression Is Not Warranted Because Any Taint Had Dissipated by the Time Petitioner Consented to the Search. ........................................................................... 11
C. Petitioner’s Consent Was Not Tainted by Petitioner Being Unlawfully Seized at the Time He Gave Consent Because the Initial Seizure Had Ended and Neither Deputy Sanderson’s Actions or Intimidating Circumstances Effected a Re-Seizure of Petitioner. .................................................................................................................. 14
1. The Initial Seizure Ended When Petitioner Was Informed He Was Free to Leave and Permitted to Re-Enter His Vehicle. ..................................................... 15
2. Deputy Sanderson Did Not Use Any Physical Force or Shows of Authority to Re-Seize Petitioner. ............................................................................................... 15
3. The Circumstances of the Encounter Were Not So Intimidating That They Effected a Re-Seizure of Petitioner. ...................................................................... 17
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II. Petitioner’s Claim of Ineffective Counsel Lacks Sufficient Evidence to Show That Attorney Brendanawicz’s Performance Rose to the Requisite Level of Deficiency and Petitioner Was Prejudiced As a Result. ......................................................................... 18
A. Attorney Brendanawicz’s Representation Was Not Deficient As It Fell Within the Ambit of Reasonable Professional Assistance Required by the Constitution. .... 19
1. Attorney Brendanawicz Must Be Afforded Deference As an Attorney Generally and in Specific Consideration of the Complexity of Plea Bargaining. . 19
2. Attorney Brendanawicz Met the Required Standard of Reasonableness When He Provided Petitioner with Sufficiently Strong and Correct Advice Concerning Immigration Consequences. .................................................................................. 21
B. Petitioner Failed to Show That He Was Prejudiced by Attorney Brendanawicz’s Representation. .......................................................................................................... 25
1. Petitioner’s Guilty Plea Was Knowing and Voluntary Because Acceptance of the Initial Plea Bargain Took Place in Court, After He Was Fully Advised by the Judge of the Risk of Deportation. .......................................................................... 26
2. Petitioner Fails to Show Prejudice Because His Choice to Accept a Plea Bargain Was Rational Despite the Risk of Deportation. ....................................... 28
CONCLUSION ................................................................................................................. 30
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TABLE OF AUTHORITIES
United States Supreme Court Cases
Blackledge v. Allison, 431 U.S. 63 (1977) .................................................................................... 27
Brinegar v. United States, 338 U.S. 160 (1949) ........................................................................... 10
Brown v. Illinois, 422 U.S. 590 (1975) ................................................................................... 12, 13
California v. Hodari D., 499 U.S. 621 (1991) .............................................................................. 15
Chaidez v. United States, 133 S. Ct. 1103 (2013) ................................................................... 20, 22
Dunway v. New York, 442 U.S. 200 (1979) .................................................................................. 13
Elkins v. United States, 364 U.S. 206 (1960) .................................................................................. 6
Fernandez v. California, 134 S. Ct. 1126 (2014) ........................................................................... 6
Florida v. Bostick, 501 U.S. 429 (1991) ................................................................................. 14, 17
Florida v. Royer, 460 U.S. 491 (1983) ................................................................................... 16, 17
Herring v. United States, 555 U.S. 135 (2009) ............................................................................. 11
Hill v. Lockhart, 474 U.S. 52 (1985) ............................................................................................ 29
Hudson v. Michigan, 547 U.S. 586 (2006) ................................................................................... 11
Illinois v. Gates, 462 U.S. 213 (1983) ............................................................................................ 7
Illinois v. Wardlow, 528 U.S. 119 (2000) ................................................................................... 7, 8
Immigration & Naturalization Serv. v. Delgado, 466 U.S. 210 (1984) .................................. 16, 17
Lafler v. Cooper, 132 S. Ct. 1376 (2012) ............................................................................... 20, 21
McMann v. Richardson, 397 U.S. 759 (1970) .................................................................. 20, 21, 26
Michigan v. Chesternut, 486 U.S. 567 (1988) .............................................................................. 14
Missouri v. Frye, 132 S. Ct. 1399 (2012) ............................................................................... 21, 27
Murray v. United States, 487 U.S. 533 (1988) ............................................................................. 12
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Nardone v. United States, 308 U.S. 338 (1939) ............................................................................ 12
Navarette v. California, 134 S. Ct. 1683 (2014) ......................................................................... 6, 7
New York v. Harris, 495 U.S. 14 (1990) ....................................................................................... 13
Oregon v. Elstad, 470 U.S. 298 (1985) ......................................................................................... 13
Ornelas v. United States, 517 U.S. 690 (1996) ........................................................................... 7, 8
Padilla v. Kentucky, 559 U.S. 356 (2010) ............................................................................. passim
Rawlings v. Kentucky, 448 U.S. 98 (1980) ............................................................................. 12, 13
Rodriguez v. United States, 135 S. Ct. 1609 (2015) ................................................................... 6, 7
Strickland v. Washington, 466 U.S. 668 (1984) .................................................................... passim
Taylor v. Alabama, 457 U.S. 687 (1982) ...................................................................................... 14
United States v. Arvizu, 534 U.S. 266 (2002) ........................................................................... 7, 10
United States v. Cortez, 449 U.S. 411 (1981) ................................................................................. 6
United States v. Drayton, 546 U.S. 194 (2002) ............................................................................ 17
United States v. Leon, 468 U.S. 897 (1984) .................................................................................. 12
United States v. Mendenhall, 446 U.S. 544 (1980) ................................................................ 14, 15
United States v. Sokolow, 490 U.S. 1 (1989) .................................................................................. 7
Wong Sun v. United States, 371 U.S. 471 (1963) ......................................................................... 12
United States Circuit Court Cases
Bridgman ex rel. Bridgman v.
New Trier High Sch. Dist. No. 203, 128 F.3d 1146 (7th Cir. 1997) ................................... 9
Hedges v. Musco, 204 F.3d 109 (3rd Cir. 2000) ............................................................................. 9
United States v. Alpert, 816 F.2d 958 (4th Cir. 1987) .................................................................... 9
United States v. Bonilla, 637 F.3d 980 (9th Cir. 2011) ................................................................ 26
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United States v. Erwin, 15 F.3d 818 (6th Cir. 1998) ...................................................................... 9
United States v. Jenkins, 680 F.3d 101 (1st Cir. 2012) ................................................................... 8
United States v. Kayode, 777 F.3d 719 (5th Cir. 2014) .................................................... 27, 28, 29
United States v. Slater, 411 F.3d 1003 (8th Cir. 2005) ................................................................. 10
United States v. Winters, 600 F.3d 963 (8th Cir. 2010) ............................................................ 9, 10
Vondrak v. City of Las Cruces, 535 F.3d 1198 (10th Cir. 2008) .................................................. 10
State Court Cases
Chacon v. State, 409 S.W.3d 529 (Mo. Ct. App. 2013) ......................................................... 24, 25
Commonwealth v. Escobar, 70 A.3d 838 (Pa. 2013) .................................................................... 24
State v. Sandoval, 171 Wash.2d 163 (2011) ........................................................................... 23, 27
Constitutional Provisions
U.S. Const. amend. IV .................................................................................................................... 6
U.S. Const. amend. VI. ................................................................................................................. 19
Statutory Provisions
8 U.S.C. § 1227 (2012) ........................................................................................................... 21, 24
EAGLETON STAT. § 147.23 .............................................................................................................. 6
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CONSTITUTIONAL PROVISIONS OR STATUTES INVOLVED
The Fourth Amendment provides: “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 provides: “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.”
Eagleton Statute § 147.23 provides in relevant part: “Every self-propelled motor
vehicle . . . shall be equipped with at least two headlamps . . . all in good operating condition.”
Eagleton Statute § 841 provides in relevant part: “It shall be unlawful for any person to
knowingly or intentionally . . . possess with intent to manufacture . . . a controlled substance.”
8 U.S.C. § 1227 (2012) provides in relevant part: “Any alien . . . in and admitted to the
United States shall . . . be removed if the alien . . . 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 . . . other
than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is
deportable.”
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STATEMENT OF THE CASE
On May 20, 2013, Sheriff’s Deputy David Sanderson (“Deputy Sanderson”) of the
Pawnee County Sheriff’s Department was on patrol. R. at 3. A little after 6:10 PM, Deputy
Sanderson observed a vehicle with a burnt out headlight. R. at 4. As all vehicles in the State of
Eagleton must be equipped with two functioning headlights, EAGLETON STAT. § 147.23(b),
Deputy Sanderson conducted a traffic stop of the vehicle. R. at 4. The driver of the vehicle was
Mr. Tomas Haverford (“Petitioner”). R. at 4.
When Deputy Sanderson first made contact with Petitioner, Petitioner asked to leave the
scene. R. at 11. At this point, Deputy Sanderson observed that Petitioner was very nervous, R. at
11, that he was shaking very badly, R. at 11, and, based on his experience and training, that
Petitioner’s pupils were dilated beyond that of a normal man, R. at 4 & 8. After writing
Petitioner a citation and explaining it, R. at 11–12, Deputy Sanderson asked Petitioner if he was
using any drugs. R. at 12. In response, Petitioner admitted that he was taking prescription drugs.
R. at 12. When questioned about his nervousness, Petitioner denied that he was nervous at all. R.
at 12. Based on his observations, training, and experience, Deputy Sanderson asked Petitioner to
perform field sobriety tests, which Petitioner agreed to do. R. at 12–13. After the tests were
conducted, Deputy Sanderson told Petitioner he was free to leave, and walked away. R. at 14.
Twelve seconds later, Deputy Sanderson re-approached Petitioner and asked if he could
speak with Petitioner again, to which Petitioner gave his permission. R. at 14. Deputy Sanderson
asked Petitioner if there was anything in the car he needed to know about, which Petitioner
denied. R. at 14. Deputy Sanderson then asked Petitioner if he could search Petitioner’s vehicle.
R. at 14. In response, Petitioner gave his consent to the search. R. at 14. Deputy Sanderson
confirmed that Petitioner was consenting to the search, and then proceeded with the search. R. at
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14. The search revealed materials used in the manufacture of methamphetamine, as well as a
substance that was later tested positive for methamphetamine. R. at 5–6. Deputy Sanderson then
arrested Petitioner for possession with intent to manufacture methamphetamine in violation of
EAGLETON STAT. § 841.
Petitioner filed a motion to suppress the evidence seized during the search of his vehicle.
R. at 15. Petitioner contended that the extension of the traffic stop was not justified by reasonable
suspicion and was not attenuated from his grant of consent, and that he was seized at the time he
gave consent to the search, rendering his consent invalid—both grounds requiring suppression.
R. at 15–21. On July 10, 2013, Judge Perd Hapley of the Pawnee District Court for the State of
Eagleton issued an order denying Petitioner’s motion, holding that Petitioner’s consent was
attenuated from the extension of the traffic stop and that Petitioner was not seized at the time he
gave consent for the search. R. at 16–21.
On August 24, 2013, Petitioner again appeared before Judge Hapley in order to enter his
response to a plea bargain. R. at 23. Attorney Brendanawicz represented Petitioner in this
proceeding and expressed Petitioner’s concern about deportation numerous times. R. at 24.
During a recess, Attorney Brendanawicz and Petitioner conferred privately, in order to decide on
the best course of action. R. at 25. Upon reconvening, Petitioner, after confirming his prior
receipt of advice from Attorney Brendanawicz, was again warned about potential immigration
consequences by Judge Hapley. R. at 25. Petitioner affirmed his understanding of the risks and
proceeded to enter his guilty plea on the record. R. at 25. On September 23, 2013, Petitioner
received a Notice to Appear from the U.S. Department of Justice due to the implications of his
plea. R. at 22.
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Less than one month later, on October 16, 2013, Petitioner appeared in Pawnee District
Court, seeking a withdrawal of his guilty plea under Eagleton Rule of Criminal Procedure 11.
R. at 28. Petitioner alleged that Attorney Brendanawicz performed deficiently when he advised
Petitioner of the potential for adverse immigration consequences collateral to a guilty plea.
R. at 28. Attorney Brendanawicz stated that he warned Petitioner of a “strong chance” of
deportation before Petitioner entered his plea. R. at 29. Petitioner did not negate this statement,
but only stated that had he been aware of the deportation risks associated with a guilty plea, he
would have proceeded to trial instead. R. at 30. On November 1, 2013, Judge Hapley denied
Petitioner’s motion to withdraw his guilty plea, reasoning that Petitioner failed to demonstrate
that he was prejudiced by the representation of Attorney Brendanawicz. Petitioner was
subsequently sentenced to ten years imprisonment, pursuant the terms of his plea bargain. R. at
38.
On November 15, 2013, Petitioner appealed the denial of both his motion to suppress
and his motion to withdraw his guilty plea to the Supreme Court of Eagleton. R. at 38. The court
affirmed the district court’s denial of both motions. R. at 50. As to suppression, the court held
that the extension of the traffic stop was based on reasonable suspicion, and that Petitioner was
not seized at the time he consented to the search. R. at 42–48. As to deficient counsel, the court
held that Attorney Brendanawicz’s advice concerning Petitioner’s risk of deportation was
reasonable in consideration of professional standards. R. at 47. The court noted that because
Petitioner’s conviction did not carry clear and straightforward immigration consequences,
Attorney Brendanawicz provided Petitioner with reasonable counsel. R. at 49 – 50. Petitioner
timely filed a petition for certiorari, which this Court granted on both issues. R. at 61.
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SUMMARY OF THE ARGUMENT
Petitioner has failed to establish a violation of either his Fourth Amendment rights or his
Sixth Amendment rights. Thus, Petitioner’s attempts to suppress the evidence of
methamphetamine and his attempt to withdraw his guilty plea must fail. First, Petitioner has
failed to show that Petitioner’s consent to the search by Deputy Sanderson was tainted by any
unlawful seizure. This Court’s precedent shows that the standard of reasonable suspicion does
not require a large showing of proof, is flexible, and gives deference to officers on the scene.
Deputy Sanderson’s observations of Petitioner’s extreme nervousness, evasive behavior,
symptoms of drug use, and Petitioner’s admission of prescription drug use taken together
provided reasonable suspicion to seize Petitioner for field sobriety tests. Even assuming that the
seizure was unlawful, suppression of the evidence would not be justified because any taint had
dissipated by the time Petitioner consented to the search of his vehicle.
Furthermore, petitioner’s consent was not tainted by being unlawfully seized at the time
he gave consent. The initial seizure of Petitioner had ended when he was told he was free to
leave and permitted to re-enter his vehicle, and Petitioner was never re-seized. Deputy Sanderson
did not use any physical force or shows of authority to re-seize Petitioner and the circumstances
of the encounter were not so intimidating as to effect a seizure. For these reasons, Petitioner’s
Fourth Amendment claim must fail.
In addition, Petitioner’s claim of inefficient counsel is without merit. In order to prevail,
Petitioner must meet the two-pronged standard established in 1984’s Strickland v. Washington,
466 U.S. 668 (1984). Petitioner must prove that counsel’s performance was constitutionally
deficient, which requires a showing that “counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment,” and that he was
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prejudiced by this defense, or in other words, that “counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687.
Petitioner fails to meet either of the Strickland prongs.
Petitioner argues that Attorney Brendanawicz’s warning of a ‘strong possibility’ of
deportation was constitutionally deficient as Attorney Brendanawicz was required to specifically
state that the prospect of deportation was “mandatory” upon the entering of a guilty plea. This
contention is based on an erroneous reading of prevailing case law, primarily Padilla v.
Kentucky, 559 U.S. 356, 373 (2010). Contrary to Petitioner’s assertions, Padilla makes no
changes to the substantive requirements of counsel elucidated under Strickland, and simply
affirmed the necessity of immigration advice. The statute at issue is not clear enough to demand
that Attorney Brendanawicz use specific terms to convey the risk of deportation; meaning his
warning to Petitioner was correct and reasonable given the circumstances. Furthermore,
Petitioner fails to show that he was prejudiced by Attorney Brendanawicz’s representation. A
consideration of prejudice assesses whether or not a defendant was deprived of his right to a fair
trial. Strickland, 466 U.S. at 687. This focuses on whether, “but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. at 694. Petitioner’s claim of
prejudice is flawed in that Petitioner lacks any evidence that proceeding to trial would have been
rational. The only chance Petitioner had to avoid the risk of deportation was the unlikely
possibility, if not impossibility, of acquittal of all charges. Proceeding to trial also would have
made Petitioner eligible for increased jail time without lessening the risk of deportation. Due to
the inability of Petitioner to prove either prong of the required Strickland standard, the lower
courts properly dismissed his claim of ineffective counsel. Accordingly, we respectfully request
that this Court affirm the judgment of the Supreme Court of Eagleton.
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ARGUMENT
I. THE EVIDENCE FOUND DURING A SEARCH OF PETITIONER’S VEHICLE AFTER PETITIONER CONSENTED TO A SEARCH SHOULD NOT BE SUPPRESSED BECAUSE PETITIONER’S CONSENT WAS NOT TAINTED BY ANY UNLAWFUL SEIZURE.
This Court has long recognized that “[i]t must always be remembered that what the
Constitution forbids is not all searches and seizures, but unreasonable searches and seizures.”
Elkins v. United States, 364 U.S. 206, 222 (1960). See also U.S. Const. amend. IV. Searches
conducted after consent are considered reasonable, and do not violate the Fourth Amendment.
Fernandez v. California, 134 S. Ct. 1126, 1132 (2014). It is important to note that Petitioner is
not contesting that he consented to the search, but is instead arguing that his consent was
tainted—either by an allegedly unlawful seizure for field sobriety tests or by being unlawfully
seized at the time he gave consent. R. at 61. However, Petitioner’s argument fails because
Deputy Sanderson had reasonable suspicion to seize Petitioner for field sobriety tests—or, in the
alternative, any unlawful extension of the traffic stop was sufficiently attenuated from
Petitioner’s consent—and Petitioner was released and not re-seized before he gave consent.
A. Petitioner’s Behavior and Indications of Drug Use Provided Reasonable Suspicion for a Lawful Seizure of Petitioner for Field Sobriety Tests.
When an officer has “reasonable suspicion” of criminal activity, they may conduct a
“brief investigative stop[]” of a citizen. Navarette v. California, 134 S. Ct. 1683, 1687 (2014)
(citing United States v. Cortez, 449 U.S. 411, 417–18 (1981)). This includes traffic stops. See
Rodriguez v. United States, 135 S. Ct. 1609 (2015). There is no question that in this case Deputy
Sanderson had reasonable suspicion to initially stop Petitioner: EAGLETON STAT. § 147.23(b)
provides that every vehicle must be equipped with headlights “in good working condition,” R. at
58, and Petitioner’s vehicle had a headlight that was burnt out. R. at 4. However, Deputy
Sanderson then continued to detain Petitioner for field sobriety tests. R. at 12. Extending a traffic
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stop beyond the time necessary to deal with the initial justification for the stop constitutes a new
seizure that must be supported by reasonable suspicion. See Rodriguez, 135 S. Ct. at 1609.
Considering the flexibility that the reasonable suspicion standard gives officers, Deputy
Sanderson had reasonable suspicion to lawfully seize Petitioner for field sobriety tests based on
Petitioner’s behavior and indications of drug use.
1. Reasonable Suspicion is a Flexible Standard That Defers to Officer’s Inferences and Judgment and Does Not Require a Large Showing of Proof.
Reasonable suspicion is “not ‘readily, or even usefully, reduced to a neat set of legal
rules.’” United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Illinois v. Gates, 462 U.S. 213,
238 (1983)). Instead of relying on hard and fast rules, courts must look at “the totality of the
circumstances” and determine whether an officer had a “particularized and objective basis for
suspecting . . . criminal activity.” Cortez, 449 U.S. at 418. The process of determining reasonable
suspicion “does not deal with hard certainties, but with probabilities.” Id. This uncertainty means
that the possibility that evidence could be innocently explained away does not negate, or even
weigh against, a finding of reasonable suspicion. See United States v. Arvizu, 534 U.S. 266, 274–
76 (2002); Illinois v. Wardlow, 528 U.S. 119, 125–26 (2000) (noting reasonable suspicion
“accepts the risk that officers may stop innocent people”).
The standard provides officers with the flexibility to make determinations on the scene
without second-guessing or hindsight judgments. See Navarette, 134 S. Ct. at 1691
(“[p]etitioners’ attempts to second-guess . . . are unavailing”). In keeping with this principle,
courts must give “due weight to inferences drawn from [the] facts” by officers who are actually
on the scene. Ornelas v. United States, 517 U.S. 690, 699 (1996). Ultimately, to satisfy the
requirement of reasonable suspicion, officers must “be able to point to specific and articulable
facts [and inferences that] . . . reasonably warrant” a stop. Id. The amount of proof that is needed
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is nowhere near proof beyond a reasonable doubt, and even “requires a showing considerably
less than preponderance of the evidence.” Id. at 123 (emphasis added). Keeping in mind this
relatively low threshold, it is clear that Deputy Sanderson had sufficient ‘specific and articulable
facts’ giving rise to reasonable suspicion.
2. Petitioner’s Extreme Nervousness, Evasive Behavior, Symptoms of Drug Use, and Admissions of Prescription Drug Use Provided Reasonable Suspicion for a Seizure.
At the time Deputy Sanderson asked Petitioner to perform the field sobriety tests he
knew: 1) Petitioner was extremely nervous, 2) Petitioner had asked to leave the scene, 3)
Petitioner put his hands in his pockets, 4) Petitioner was shaking “real bad,” 5) Petitioner’s
pupils were dilated to approximately two to three millimeters, and 6) Petitioner had admitted he
was taking prescription drugs. R. at 11–12.
Even considered in isolation, Petitioner’s nervousness justifiably gave rise to an inference
that Petitioner was afraid of being caught. This Court has explicitly found that “[n]ervous,
evasive behavior is [a] pertinent factor in determining reasonable suspicion.” Wardlow, 528 U.S.
at 125 (citations omitted); see also United States v. Jenkins, 680 F.3d 101, 105 (1st Cir. 2012)
(listing “nervous[ness]” and “shaking” as evidence of “fear of exposure” providing grounds for
reasonable suspicion). To fully appreciate the weight that Deputy Sanderson gave to Petitioner’s
nervousness, the context of the traffic stop must be remembered. Petitioner was pulled over for,
and was very quickly told he was being pulled over for, a burnt out headlight. While the prospect
of a potentially expensive ticket and wasted time during the stop could certainly give rise to
annoyance or even anger, nervousness is much more out of the ordinary. Moreover, when
confronted, Petitioner explicitly denied that he was nervous at all. R. at 12. An individual
disagreeing with a police officer often coincides with an attempt to evade being caught—the
example of a motorist denying how fast he was going in an attempt to avoid a speeding ticket is
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apt. Combined with Petitioner’s nervousness, Petitioner’s attempts to deny that nervous certainly
justified suspicion as to whether Petitioner was involved in criminal activity.
Added to this was the fact that Petitioner tried to avoid any further interaction with
Deputy Sanderson, asking if he could pull into a nearby parking lot. R. at 11. This is evidence of
a desire to evade Deputy Sanderson. While certainly not as blatant, and thus damning, as an
attempt to flee the scene, it does show a desire to stay away from police officers—which gives
rise to a possibility of wrongdoing.
On top of Petitioner’s extreme nervousness and evasive behavior, Petitioner had many
indications of drug use. This consisted of the Petitioner’s shaking, dilated pupils, and admissions
of prescription drug use—all justifying an inference that Petitioner was under the influence of
narcotics. Dilated pupils are a sign of drug use and intoxication, and can thus provide grounds for
reasonable suspicion. See United States v. Winters, 600 F.3d 963, 968 (8th Cir. 2010) (noting
“body tremors” and “dilated pupils” among grounds for probable cause); Hedges v. Musco, 204
F.3d 109, 117 (3rd Cir. 2000) (finding dilated pupils formed part of reasonable suspicion);
United States v. Erwin, 15 F.3d 818, 826 (6th Cir. 1998) (Martin, C.J., dissenting) (listing
“dilated pupils” as a sign of intoxication); Bridgman ex rel. Bridgman v. New Trier High Sch.
Dist. No. 203, 128 F.3d 1146, 1149 (7th Cir. 1997) (noting dilated pupils as grounds for
reasonable suspicion for a medical test including a drug test); United States v. Alpert, 816 F.2d
958, 961 (4th Cir. 1987) (noting “dilated pupils” as grounds for reasonable suspicion).
While Deputy Sanderson may not have been a drug recognition expert, he had training on
the significance of dilated pupils, he had access to a pupilometer for reference, and he had prior
experience with dilated pupils. R. at 4. Because the process of reasonable suspicion “allows
officers to draw on their own experiences and specialized training to make inferences,” Deputy
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Sanderson was entitled to infer that Petitioner’s dilated pupils were indicative of drug use.
Arvizu, 534 U.S. at 273. It is also important to remember that even though Deputy Sanderson
may have been wrong, as the negative field sobriety tests showed, the fact that an officer made a
reasonable mistake is not dispositive. The law recognizes that police officers are human beings,
and that “room must be allowed for some mistakes on their part.” Brinegar v. United States, 338
U.S. 160, 176 (1949). The only requirement is that these “mistakes must be those of reasonable
men, [based] on facts leading sensibly to their conclusions of probability.” Id. Deputy
Sanderson’s conclusions were based on his training and experience, and thus were reasonable.
Added to Deputy Sanderson’s observation of Petitioner’s dilated pupils was Petitioner’s
excessive shaking. Cf. Winters, 600 F.3d at 968 (noting “body tremors” and “dilated pupils”
among grounds for probable cause). When considered separately, dilated pupils and shaking are
possible symptoms of drug use—taken together they provided strong evidence to support an
inference that Petitioner was under the influence of narcotics.
The final piece of evidence showing possible drug use was Petitioner’s admission that he
was taking prescription drugs. R. at 14. While such an explanation seems to be innocent, and
would thus cut against reasonable suspicion, the law recognizes that individuals questioned about
illegal activity may try to minimize or explain away their behavior. In the context of driving
while under the influence of alcohol, courts have pointed to admissions that a driver had been
drinking—even in small amounts or hours before—as grounds for reasonable suspicion. See
Vondrak v. City of Las Cruces, 535 F.3d 1198, 1207 (10th Cir. 2008) (finding suspect’s
admission he had “one beer three hours ago” was the “only factual basis for conducting the field
sobriety tests,” but provided “the reasonable suspicion necessary”); United States v. Slater, 411
F.3d 1003, 1006 (8th Cir. 2005) (finding suspect’s admission he had had “a couple drinks” gave
11
officers “reasonable suspicion to extend the stop” for field sobriety tests). The same principle
applies here—Deputy Sanderson could reasonably infer that Petitioner was offering a benign
explanation to mitigate any signs of drug use. This inference was supported by the fact that
Deputy Sanderson had experience with people taking the same prescription drug who acted
differently than Petitioner, possibly indicating that his explanation was a lie or cover up. R. at 14.
As with Petitioner denying his nervousness, an individual’s story directly contradicting observed
facts provides strong evidence to infer that criminal activity may be afoot. Thus, taken together
with the indications of drug use Deputy Sanderson had observed, Petitioner’s admission that he
was taking prescription drugs can be interpreted as an attempt to explain away indications of
drug use—providing reasonable suspicion that Petitioner was in fact under the influence of
narcotics.
While each fact taken separately might be susceptible to an innocent explanation and
insufficient to provide reasonable suspicion, when viewed as a whole, Petitioner’s demeanor,
statements, and symptoms gave rise to a reasonable probability that Petitioner was under the
influence of illegal drugs, and thus provided Deputy Sanderson with the reasonable suspicion
necessary to justify seizing Petitioner for field sobriety tests.
B. Even If the Seizure of Petitioner for Field Sobriety Tests Was Unlawful, Suppression Is Not Warranted Because Any Taint Had Dissipated by the Time Petitioner Consented to the Search.
Even if Deputy Sanderson did not have reasonable suspicion to seize Petitioner for field
sobriety tests, the suppression of the evidence found in the later search does not automatically
follow. See Herring v. United States, 555 U.S. 135, 140 (2009); Hudson v. Michigan, 547 U.S.
586, 591 (2006) (noting suppression is not “first instinct,” but instead “last resort”). Suppression
is only warranted where the benefits of deterrence outweigh the social cost of letting guilty
defendants go free. Herring, 555 U.S. at 141. One situation in which the costs of suppression
12
outweigh the benefits is when evidence is “acquired as an indirect result of the unlawful search
. . . [after] the point at which the connection with the unlawful search becomes ‘so attenuated as
to dissipate the taint.’” Murray v. United States, 487 U.S. 533, 536–37 (1988) (quoting Nardone
v. United States, 308 U.S. 338, 341 (1939)); see also Wong Sun v. United States, 371 U.S. 471,
484–85 (1963). This ‘dissipation of the taint’ analysis marks the point at which “the deterrent
effect of the exclusionary rule no longer justifies its cost.” Brown v. Illinois, 422 U.S. 590, 609
(1975) (Powell, J., concurring in part); see also United States v. Leon, 468 U.S. 897, 911 (1984)
(citing Powell’s concurrence in majority opinion). This analysis rests on three factors: 1) the
“temporal proximity” between misconduct and evidence, 2) whether there are any “intervening
circumstances,” and 3) the “purpose and flagrancy” of the misconduct. Brown, 422 U.S. at 603–
04. An analysis of these three factors shows that any possible taint from the seizure of Petitioner
for field sobriety tests had dissipated by the time that Petitioner gave his consent to the search.
First, only twelve seconds elapsed between the end of the allegedly illegal extension of
the traffic stop and the Petitioner’s grant of consent. R. at 14. Without more, this would certainly
weigh against dissipation—however, precedent is clear that it is “necessary to examine the
precise conditions” of the temporal gap. Rawlings v. Kentucky, 448 U.S. 98, 107–08 (1980)
(recognizing a difference between a lapse of time “under the strictest of custodial conditions”
and that under a “congenial atmosphere”). This gap occurred on a public street, during the day,
after Petitioner was told he was free to leave and actually got back into the driver’s seat of his
vehicle. R. at 5, 18. Deputy Sanderson at no point acted in a threatening manner or raised his
voice to Petitioner. R. at 18. Indeed, he politely asked Petitioner for his permission to speak to
him again. R. at 14. This can hardly be said to be “the strictest of custodial conditions.”
Rawlings, 448 U.S. at 107.
13
Second, Deputy Sanderson’s statements that Petitioner was free to leave, and Deputy
Sanderson asking Petitioner for permission to speak with him again constituted intervening
circumstances. Unlike most ‘dissipation of the taint’ cases, Petitioner was not held in custody
from the entire gap in time between an illegal seizure and evidence being obtained, see Oregon v.
Elstad, 470 U.S. 298, 300–01 (1985); Rawlings, 448 U.S. at 100; Dunway v. New York, 442 U.S.
200, 203 (1979), but was instead explicitly told that he was free to leave. R. at 14. This is
certainly an intervening circumstance of some significance, as it significantly lessens the
possibility that a reasonable person would connect the request to search the vehicle with the
earlier traffic stop. Added to this is the fact that Deputy Sanderson explicitly asked for
permission to speak with Petitioner in the first place—further evidence that the earlier
conversation had ended, and Deputy Sanderson was attempting to start a new conversation. R. at
14 (“Hey, Tom, can I talk to you again?” (emphasis added)). Moreover, Deputy Sanderson took
the extra step of confirming that Petitioner was consenting to the search, R. at 14—providing
further proof that Petitioner’s consent was removed from any possible taint. This factor weighs
significantly in favor of attenuation.
Finally, Deputy Sanderson’s conduct was neither purposeful nor flagrant. Considering the
goal of suppression—to deter police misconduct, Brown, 422 U.S. at 599, and the instructions of
this Court, New York v. Harris, 495 U.S. 14, 23 (1990) (noting that flagrancy is “‘particularly
important’”), this is the most important factor in the dissipation of the taint analysis. Even
assuming arguendo that Deputy Sanderson’s seizure of Petitioner for field sobriety tests was
unlawful, Deputy Sanderson did not purposefully violate Petitioner’s Fourth Amendment rights
in an attempt to obtain evidence. Cf. Harris, 495 U.S. at 26 (noting conscious “deci[sion]” “to
violate [suspect’s] Fourth Amendment rights” justified suppression); Taylor v. Alabama, 457
14
U.S. 687, 693 (1982) (noting officers decision to arrest without probable cause “in the hope that
something would turn up” justified suppression). He believed that he had reasonable suspicion
for field sobriety tests based on his observations, and even conscientiously recorded his reasons
for thinking so in his audio log. R. at 11. This precludes any possibility that Deputy Sanderson
consciously decided to violate Petitioner’s rights in order to go on a ‘fishing trip.’ Nor was
Deputy Sanderson’s conduct flagrant. He simply had Petitioner conduct the field sobriety tests he
thought were warranted, and then released him. He did not arrest Petitioner after he had passed
the sobriety tests or drag him to the police station. Cf. Taylor, 457 U.S. at 688–89. Thus, the
most important factor also weighs in favor of the dissipation of the taint.
On the whole, the significant intervening circumstances and the complete and utter lack
of purposefulness or flagrancy in any misconduct by Deputy Sanderson weigh so significantly in
favor of dissipation of the taint as to overcome the small temporal gap. Thus, even if the seizure
of Petitioner for field sobriety tests did violate the Fourth Amendment, the evidence from the
separate search should not be suppressed as there is no purposeful misconduct to deter.
C. Petitioner’s Consent Was Not Tainted by Petitioner Being Unlawfully Seized at the Time He Gave Consent Because the Initial Seizure Had Ended and Neither Deputy Sanderson’s Actions or Intimidating Circumstances Effected a Re-Seizure of Petitioner.
Petitioner’s consent was also not tainted by being given while Petitioner was unlawfully
seized. Not every single encounter between police officers and citizens constitutes a seizure
under the Fourth Amendment. See Florida v. Bostick, 501 U.S. 429, 434 (1991). In determining
whether someone has been seized, the “crucial test” is whether they were “at liberty to ignore the
police presence and go about his business,’” id. at 437 (quoting Michigan v. Chesternut, 486
U.S. 567, 569 (1988)), or, phrased differently, whether they feel “free to leave,” United States v.
Mendenhall, 446 U.S. 544, 554 (1980). This evaluation is an objective one, focusing not on what
15
the individual involved believed, but what a reasonable person would have believed. California
v. Hodari D., 499 U.S. 621, 628 (1991). The initial traffic stop in this case was ended when
Petitioner was informed he was free to leave—meaning his seizure was at an end under the
Mendenhall standard. As there was no use of physical force or shows of authority by Deputy
Sanderson, and because the circumstances were not so intimidating that a reasonable person
would not feel free to leave, Petitioner has failed to show that he was re-seized and thus that he
was unlawfully seized at the time he consented to the search.
1. The Initial Seizure Ended When Petitioner Was Informed He Was Free to Leave and Permitted to Re-Enter His Vehicle.
As stated above, a person is only seized if a reasonable person would believe they are not
free to leave. Mendenhall, 446 U.S. at 552. A reasonable person would usually feel free to leave
when they are told that they are free to leave—as occurred in this case. Deputy Sanderson
specifically told Petitioner: “Alright, you’re okay to go. I’ll let you go on your way.” R. at 14
(emphasis added). Indeed, at this point, Petitioner and Deputy Sanderson exchanged common
good-bye’s, saying “Okay. You have a good day.” and “Take care.” R. at 14. Deputy Sanderson
then walked away, R. at 5, and Petitioner was permitted to get back into the driver’s seat of his
vehicle. R. at 9. If Petitioner were not feel free to leave, he hardly would have been allowed to
get behind the wheel of a vehicle he could use to flee. Under these circumstances, a reasonable
person would in fact feel free to leave, meaning the initial seizure of Petitioner had ended.
2. Deputy Sanderson Did Not Use Any Physical Force or Shows of Authority to Re-Seize Petitioner.
The crucial period of analysis is the period between the termination of the initial
encounter and the point at which Petitioner consented to the search of his vehicle. For Deputy
Sanderson to seize Petitioner during this period, he must have used either “physical force or [a]
show of authority.” Mendenhall, 446 U.S. at 552. The record shows that during that period
16
Deputy Sanderson did not use physical force, and that he did only three things of any
significance: 1) he walked away from Petitioner’s vehicle and back to his own, 2) he re-
approached Petitioner’s vehicle and asked to speak with him, and 3) he asked if there was
anything in the vehicle he needed to know about. R. at 5, 14. None of these actions constituted a
show of authority effecting a seizure of Petitioner.
First, Deputy Sanderson walked back to his own vehicle after telling Petitioner he was
free to leave. R. at 5. This cannot possibly constitute a show of authority. Indeed, Deputy
Sanderson telling Petitioner he was free to leave and then walking away showed that Deputy
Sanderson’s control over Petitioner had ended. This was not a show of authority—in fact, it is
most logically interpreted as a relinquishment of authority. By walking away, Deputy Sanderson
was indicating that the encounter was over and that he no longer had control over Petitioner.
Second, twelve seconds after walking away, Deputy Sanderson began to walk towards
Petitioner’s vehicle, R. at 5, and asked, “Hey, [Petitioner], can I talk to you again?” R. at 14.
Again, this is not a show of authority. This Court has explicitly held that officers may approach
individuals and ask if they are willing to answer questions without violating the Fourth
Amendment. See Immigration & Naturalization Serv. v. Delgado, 466 U.S. 210, 216–17 (1984)
(“police questioning, by itself, is unlikely to lead to a Fourth Amendment violation”); Florida v.
Royer, 460 U.S. 491, 497 (1983) (finding no Fourth Amendment violation where officers
“merely approach[] an individual on the street . . . ask[] him if he is willing to answer some
questions”). This is true even when the individual is not “told they are free not to respond.”
Delgado, 466 U.S. at 216. Thus, Deputy Sanderson asking for permission to speak with
Petitioner again was not a show of authority.
17
Finally, after Petitioner agreed to speak with Deputy Sanderson, Deputy Sanderson
asked, “Do you have anything that I need to know about?” R. at 14. As before, this question does
not constitute a show of authority. As with officers asking a person if they are willing to answer
some questions, this Court has held that “putting questions to [a person] if the person is willing
to listen” is not violative of the Fourth Amendment. Royer, 460 U.S. at 497. A reasonable person
would understand that agreeing to speak with a police officer would likely lead to the officer
asking some questions—but the very fact that it was predicated on permission mitigates any
possibility that a reasonable person would not feel free to leave. Thus, none of Deputy
Sanderson’s actions constituted a show of authority. As there were no shows of authority, none
of Deputy Sanderson’s actions constituted a re-seizure of Petitioner.
3. The Circumstances of the Encounter Were Not So Intimidating That They Effected a Re-Seizure of Petitioner.
It is possible that even without an explicit show of authority by an officer, “circumstances
of [an] encounter [can be] so intimidating” that a reasonable person would have believed they
were not free to leave if they had not responded. Id. (emphasis added). However, this Court’s
precedent shows that the level of intimidation required is great. See United States v. Drayton,
546 U.S. 194 (2002) (finding no seizure when uniformed, armed officer displayed a badge);
Bostick, 501 U.S. at 429 (finding no seizure when two armed officers with badges blocked aisle
of bus); Delgado, 466 U.S. 210 (1984) (finding no seizure when armed agents with badges
identified selves while agents were stationed by the exits).
Where an officer does not “brandish a weapon or make any intimidating movements,”
leaves the exit open, speaks in a “polite” voice, and gives individuals “no reason to believe they
were required to answer,” there is no seizure—even when the officer is visibly armed and
displays his badge. Drayton, 546 U.S. at 203–05. The instant case is a clear parallel: Deputy
18
Sanderson did not brandish a weapon, did not make any intimidating movements, was polite, and
gave Petitioner no reason to believe Petitioner was required to answer any of Deputy
Sanderson’s questions. R. at 14, 18. Further reducing any possible intimidation is the fact that the
encounter was outside during the day on a public street. In total, the circumstances of the
interaction were not so intimidating as to make a reasonable person believe they were not free to
leave. Thus, Petitioner was not re-seized at any point between the termination of the initial
encounter and the time at which he gave consent—meaning that consent was untainted by an
unlawful seizure. Accordingly, Petitioner’s Fourth Amendment claims must fail.
II. PETITIONER’S CLAIM OF INEFFECTIVE COUNSEL LACKS SUFFICIENT EVIDENCE TO SHOW THAT ATTORNEY BRENDANAWICZ’S PERFORMANCE ROSE TO THE REQUISITE LEVEL OF DEFICIENCY AND PETITIONER WAS PREJUDICED AS A RESULT.
Because Petitioner was provided with constitutionally effective counsel, as defined by the
Sixth Amendment and relevant case law, the Supreme Court of Eagleton acted properly in
affirming the district court’s decision to refuse to allow Petitioner to withdraw his guilty plea.
Petitioner pled guilty after receiving accurate and strongly worded advice from his attorney and
the trial court judge concerning his deportability. Attorney Brendanawicz’s advice concerning
Petitioner’s deportation risk fell within the ambit of reasonableness required by prevailing case
law. Any remaining uncertainty was then remedied by Judge Hapley’s warnings during
Petitioner’s plea hearing. Furthermore, Petitioner failed to show that he was prejudiced by any
purported errors committed by Attorney Brendanawicz. Petitioner entered his guilty plea
knowingly and voluntarily before an open court. Petitioner’s plea was a rational choice
considering Petitioner’s lack of options to combat the State’s mounting case against him,
notwithstanding potential deportation consequences. As such, the court was correct in refusing to
allow Petitioner to withdraw his plea.
19
A. Attorney Brendanawicz’s Representation Was Not Deficient As It Fell Within the Ambit of Reasonable Professional Assistance Required by the Constitution.
The Sixth Amendment, in pertinent part, guarantees all criminal defendants the right “to
have the Assistance of Counsel for his defence” in litigation proceedings. U.S. Const. amend. VI.
In order to prove a violation of this right, a defendant must meet the two-pronged standard
established in 1984’s Strickland v. Washington, 466 U.S. 668 (1984). There, this Court held that
a successful defendant must show not only that counsel’s performance was so deficient as to fall
below an objective standard of reasonableness, but also that the defendant was in fact prejudiced
by the representation. Id. at 687. This Court noted that the focus of the inquiry must be upon the
“fundamental fairness’ of the proceeding” and its results. Id. at 696. The representation must fall
below appropriate standards to such a degree as to render the results ‘unreliable’ and cause a
‘breakdown of the adversarial process’ as we know it. Id. In this case, Attorney Brendanawicz’s
representation did not rise to the level of incompetence necessary to defeat the presumption of
constitutionality afforded to him.
1. Attorney Brendanawicz Must Be Afforded Deference As an Attorney Generally and in Specific Consideration of the Complexity of Plea Bargaining.
Although there have been some successful Sixth Amendment challenges, the burden
upon a defendant filing such a claim is a heavy one. See Padilla v. Kentucky, 559 U.S. 356, 372
(2010) (“[s]urmounting Strickland’s high bar is never an easy task”). In order to show that
counsel’s performance rose to the level of being constitutionally deficient, a defendant must
prove that counsel “made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. The court must
look to the fairness of the trial in totality, as “[i]mpairment of fair trial is how we distinguish
20
between unfortunate attorney error and error of constitutional significance.”
Lafler v. Cooper, 132 S. Ct. 1376, 1393 (2012) (Scalia, J., dissenting).
Since each case presents unique facts and circumstances, there is no universal standard as
to what constitutes deficiency. Chaidez v. United States, 133 S. Ct. 1103, 1107–08 (2013).
Instead, per Strickland, the court must measure counsel’s performance against “prevailing
professional norms” and decide whether or not the errors committed were so egregious as to fall
“below an objective standard of reasonableness.” Strickland, 466 U.S. at 687–88.
Reasonableness is to be determined by a full consideration of the totality of the circumstances of
the particular case.
In all cases, deference is given to counsel in recognition of the fact that practicing law is a
complex job that requires the practitioner to make strategic choices in an uncertain and fast-
paced environment. See McMann v. Richardson, 397 U.S. 759, 769 (1970) (“In the face of
unavoidable uncertainty . . . [c]ounsel must predict how the facts, as he understands them, would
be viewed by a court.”). By virtue of this precarious position, some attorneys, despite their best
efforts, will predict incorrectly. However, such “unfortunate attorney errors,” as Justice Scalia
labeled them, should be distinguished from constitutional inefficiency of counsel.
Lafler, 132 S. Ct. at 1393 (Scalia, J., dissenting). To prove the latter, a counsel’s error must rise
to the level of impairing the fairness of a trial. Id. And, in the face of uncertainty, the benefit of
the doubt must be afforded to defense counsel. As this Court affirmed, until proven otherwise,
counsel should be given a “strong presumption” that his conduct “falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 689.
Although debated historically, courts now recognize plea-bargaining as a critical step in
litigation covered by the guarantees of the Sixth Amendment. Padilla, 559 U.S. at 373.
21
Simultaneous to this recognition is the acknowledgment that advice surrounding plea-bargaining
strategy is a particularly complicated matter for any attorney and as such is considered “a highly
speculative matter in any particular case.” McMann, 397 U.S. at 774. Consideration of plea
bargains necessitates counsel to predict an inherently uncertain result and there is no guarantee
that a trial judge will ultimately sustain any bargained-for agreement. Missouri v. Frye, 132 S.
Ct. 1399, 1410 (2012).
Rescinding a guilty plea, as the Petitioner prays for in the instant case, is particularly
difficult because it may be impracticable to put a defendant back in the state he or she occupied
before the plea bargain was accepted. As a result, the burden on the defendant seeking to
withdraw a guilty plea is intentionally high. Lafler, 132 S. Ct. at 1389. Due to the defendant’s
explicit acknowledgment of guilt when accepting a plea bargain, proving deficient counsel in this
scenario requires proof that the guilty plea was not ‘a knowing and intelligent act.’ McMann, 397
U.S. at 774. Put differently, because accepting a plea bargain involves an affirmative articulation
of guilt, a court may bind a defendant to their guilty plea unless there is evidence to suggest that
the affirmation was made without the defendant’s informed consent. Id. Here, Petitioner has
stated that but for Attorney Brendanawicz’s advice, he would have gone to trial rather than
accept the offered plea bargain. However, he has offered no evidence to prove that his plea was
not made knowingly or voluntarily. Therefore, it is proper that he be bound by his plea.
2. Attorney Brendanawicz Met the Required Standard of Reasonableness When He Provided Petitioner with Sufficiently Strong and Correct Advice Concerning Immigration Consequences.
More importantly, Attorney Brendanawicz’s advice was reasonable given the recognized
complexity of immigration law coupled with the uncertainty of the specific immigration statute
at issue. Per 8 U.S.C. § 1227(a)(B)(i) (2012), upon conviction of a drug offense or aggravated
felony, Petitioner becomes “deportable.” Petitioner contends that because Attorney
22
Brendanawicz warned him of this risk without using the word “mandatory” the advice was
constitutionally deficient. R. at 28. There is no support for this contention in the wording of the
statute, nor prevailing case law.
Petitioner claims that Attorney Brendanawicz acted deficiently when he advised
Petitioner that there was a ‘strong possibility’ of deportation should Petitioner choose to plead
guilty. R. at 25. To validate his claim, Petitioner points to this Court’s 2010 decision, Padilla v.
Kentucky, 559 U.S. 356 (2010). Certainly, Padilla changed the landscape by necessitating that
counsel advise a criminal defendant about possible immigration repercussions collateral to
litigation. However, contrary to Petitioner’s argument, Padilla neither assesses the content of
such advice, nor alters the legal standard of deficiency, outlined in Strickland. Rather, Padilla
simply affirmed the necessity of immigration advice, and only under certain circumstances. It
held that immigration implications, previously categorically excluded from the duty of a criminal
defense lawyer, were no longer collateral to, but now part and parcel of the litigation and
counsel’s duty of defense. As this Court explained in its subsequent decision in 2013’s Chaidez
v. United States, 133 S. Ct. 1103 (2013), Padilla makes no changes as to how the Strickland test
should be applied, but simply concluded that immigration advice should no longer be
categorically removed from the duty of counsel. Id. at 1110. It was Padilla that “first rejected
that categorical approach—and so made the Strickland test operative—when a criminal lawyer
gives (or fails to give) advice about immigration consequences.” Padilla, 559 U.S. at 364.
Beyond condemning the extreme situations in which counsel fails to give any advice, or gives
objectively false advice, the latter as was the situation in that case, Padilla contributed little
substantively to the standard defining deficient performance of counsel in the context of
immigration consequences. Indeed, the only substantive requirement established by Padilla,
23
beyond an affirmative duty to provide advice, is the requirement that the advice be correct.
Padilla, 559 U.S. at 364. And, this Court specified that the duty of counsel to provide correct
advice only arises in cases “when the deportation consequence is truly clear.” Id. In contrast, in
the “numerous situations in which the deportation consequences of a plea are unclear . . . a
criminal defense attorney need do no more than advise a noncitizen client that pending criminal
charges may carry adverse immigration consequences.” Id.
Petitioner is correct in stating that the Padilla decision held that immigration
consequences are of great importance to criminal defendants. See Padilla, 559 U.S. at 356
(“Because the drastic measure of deportation or removal is now virtually inevitable for a vast
number of noncitizens convicted of crimes, the importance of accurate legal advice for
noncitizens accused of crimes has never been more important.”) Yet, Petitioner fails to recognize
that this Court was equally clear that deference should be given to attorneys in consideration of
the complexity of immigration laws. This Court explicitly discussed the position occupied by
criminal defense attorneys deciphering immigration law when it stated, “They are not expected
to possess—and very often do not possess—expertise in other areas of the law, and it is
unrealistic to expect them to provide expert advice on matters that lie outside their area of
training and experience.” Padilla, 559 U.S. at 376. Upon weighing these competing interests, the
Court made a compromise – it held that when defendants are faced with a risk of immigration
consequences, they are entitled to receive some advice from counsel. However, in recognition of
the precarious position occupied by defense counsel, the only substantive requirement is that the
advice be truthful. Subsequent courts have affirmed that Padilla does not require defense counsel
to become immigration law experts. State v. Sandoval, 171 Wash.2d 163, 181 (2011) (Johnson,
J., concurring).
24
Petitioner argues that Attorney Brendanawicz’s warning of a ‘strong possibility’ of
deportation was constitutionally deficient in light of the holdings of Padilla. He contends that
Attorney Brendanawicz was required to be stronger in his word choice and specifically state that
the prospect of deportation was “mandatory” upon the entering of a guilty plea. R. at 28.
Notwithstanding the fact that Attorney Brendanawicz had no way of accurately predicting the
conduct of an immigration court far out of his control, this argument has already been raised and
dismissed in other courts. In 2013, the Superior Court of Pennsylvania heard a nearly identical
argument to that of Petitioner, while considering the same statute involved in the present matter
and in Padilla: 8 U.S.C. § 1227(a)(2)(B). In specific consideration of the Padilla decision, the
court in Commonwealth v. Escobar eloquently stated:
In reaching our result, we are mindful that the Padilla court specifically considered 8 U.S.C. § 1227(a)(2)(B), the same immigration/deportation statute at issue in the present case. When it did so, the court concluded that the statute clearly made Padilla “eligible for deportation” and that “his deportation was presumptively mandatory.” Padilla, 130 S. Ct. at 1483 (emphasis added). These remarks by the court were consonant with the terms of the statute indicating most drug convictions render a defendant deportable. We do not read the statute or the court’s words as announcing a guarantee that actual deportation proceedings are a certainty such that counsel must advise a defendant to that effect.
Commonwealth v. Escobar, 70 A.3d 838, 842 (Pa. 2013). There, the court went on to
hold that counsel’s advice that deportation proceedings were ‘likely’ following a guilty
plea or conviction was well within the acceptable scope of competence demanded by the
Sixth Amendment.
The Missouri Court of Appeals reached the same conclusion in 2013’s Chacon v. State,
409 S.W.3d 529 (Mo. Ct. App. 2013). The court dismissed Chacon’s argument seeking to require
counsel to use the specific terms ‘mandatory deportation’ because of the holding in Padilla.
Chacon, 409 S.W.3d at 536–37. It explained that Padilla did not require any specific language
on the part of counsel; the only requirement was that counsel provide correct advice of a risk of
25
deportation, so that a plea will meet the constitutional requirement of being “knowing and
voluntary”. Id.
In the cases above, the advice provided by counsel was far less clear and strong than the
language used by Attorney Brendanawicz. And yet, both courts, in consideration of the same
argument and the same statute implicated both here and in Padilla, found that counsel met the
standard necessary under the Sixth Amendment. Petitioner asks that this Court ignore these prior
decisions and hold that Padilla confers a duty upon counsel to use specific language when
advising a client about a risk of deportation. Such a conclusion is unwarranted and attempts to
extend the holding of Padilla and the guarantee of effective counsel far beyond either’s original
scope. Arguably, Attorney Brendanawicz could have been more conscientious in his legal
research. However, he must be afforded the benefit of the doubt bestowed on him by this Court
as both a legal practitioner and a novice in immigration law. Ultimately, the duty of effective
counsel comes down to the caliber of advice provided, not the methods used. Petitioner received
advice that was objectively sound as well as firm. The protections afforded to him via the Sixth
Amendment were provided and therefore, it is proper that his plea continues to be upheld.
B. Petitioner Failed to Show That He Was Prejudiced by Attorney Brendanawicz’s Representation.
Should this Court accept Petitioner’s argument that Padilla demands specific language by
counsel to convey potential immigration consequences, Petitioner’s claim must still be dismissed
due to the lack of evidence proving that Petitioner was prejudiced by the representation. As
mentioned before, a claim of ineffective counsel must meet both prongs of the test illustrated by
Strickland. The second prong requires that a claimant show not only that counsel performed in a
deficient manner, but also that the result of this performance was prejudice to the defendant,
thereby preventing a fair trial. The Strickland court defined a showing of prejudice as follows:
26
“The defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466
U.S. at 694. If a defendant fails to satisfy either or both prongs of this test, the court must
construe the results of litigation as reliable and dismiss the claim. Strickland, 466 U.S. at 687.
1. Petitioner’s Guilty Plea Was Knowing and Voluntary Because Acceptance of the Initial Plea Bargain Took Place in Court, After He Was Fully Advised by the Judge of the Risk of Deportation.
Noted above, the standard by which to judge the validity of a guilty plea is if its entrance
is made voluntarily and knowingly. McMann, 397 U.S. at 774. Petitioner claims that because
Attorney Brendanawicz did not specifically state that deportation was ‘mandatory’ while
Petitioner considered accepting the State’s plea bargain, his guilty plea was rendered
unknowingly. However, Petitioner lacks sufficient evidence necessary to defeat the strong
presumption that a defendant is properly bound by his plea. See McMann 397 U.S. at 774 (“he is
bound by his plea and his conviction unless he can allege and prove serious derelictions on the
part of counsel sufficient to show that his plea was not, after all, a knowing and intelligent act.”).
An attorney’s conduct must rise to an egregious level to effectively dismiss a guilty plea.
For instance, in United States v. Bonilla, 637 F.3d 980 (9th Cir. 2011), the defendant received no
advice at all regarding immigration consequences—even after he specifically directed the issue
to his attorney for her review. Id. at 981–82. Due to this egregious oversight by counsel, the
court held that counsel’s lack of advice did indeed render the defendant’s plea unknowing and
was prejudicial to the defendant’s right to competent counsel and a fair trial. Id.
Certainly, the conduct at issue here is nowhere near as egregious as the actions of counsel
in Bonilla. Furthermore, unlike the defendant in Bonilla, Petitioner accepted his plea bargain in
open court after being explicitly reminded by the judge that such a plea could subject him to
27
deportation. The trial transcript of Petitioner’s plea hearing reveals that prior to entering his
guilty plea Petitioner was asked by Judge Hapley, “Mr. Haverford, there is a risk, if found guilty
of this crime, that you may be deported or denied admission. Knowing this, how do you plead?”
to which Petitioner responded, “Guilty.” R. at 25. This alone would be sufficient to show that
Petitioner entered his plea knowingly. See United States v. Kayode, 777 F.3d 719, 729 (5th Cir.
2014) (“Such ‘[s]olemn declarations in open court carry a strong presumption of verity.’”
(quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977))) However, before closing the hearing
Judge Hapley reaffirmed Petitioner’s knowledge, asking him “And you understand you may be
deported?” to which Petitioner affirmed that he did. R. at 25. While on record and in open court
Petitioner clearly stated that he understood the potential for deportation upon a guilty plea and
chose to accept the plea with full knowledge of that risk. R. at 25. Assuming, arguendo, that
Attorney Brendanawicz’s prior warnings to Petitioner were inadequate, the remarks made by
Judge Hapley confirming Petitioner’s understanding of immigration consequences mitigated any
remaining risk of prejudice to the Petitioner. See Sandoval, 171 Wash.2d at 182 (“Had the trial
judge in this case specifically addressed the immigration warnings during the guilty plea
colloquy, the record would not establish prejudice.”). This Court has noted that the procedure
utilized by Judge Hapley, which is common practice in plea entry hearings, gives the State the
opportunity to establish, on the record, that a defendant enters his plea knowingly. By means of
the judge’s remarks, the trial court helps to ensure a fair trial and also “affords the State
substantial protection against later claims that the plea was the result of inadequate advice.”
Frye, 132 S. Ct. at 1406. As such, Petitioner’s claim that counsel’s advice prejudiced him by
rendering his plea constitutionally inadequate is unsupported by the record and is in blatant
opposition to this Court’s precedent.
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2. Petitioner Fails to Show Prejudice Because His Choice to Accept a Plea Bargain Was Rational Despite the Risk of Deportation.
Although Petitioner has stated repeatedly that had he received additional warnings
concerning the risk of deportation he would have chosen to forgo the plea bargain, his claim of
prejudice is flawed in that it lacks any evidence showing that his proceeding to trial would have
been rational given the surrounding circumstances. The underlying rationale of allowing a claim
of ineffective counsel is to guard against situations in which a defendant, by means of his
counsel, was denied the opportunity to a fair trial. That is certainly not the case here.
To start, any consideration of prejudice must look towards a totality of the particular
circumstances in order to assess whether or not a reasonable defendant would have rationally
chosen to deny a plea bargain and proceed to trial. Kayode, 777 F.3d at 726. Factors a court may
weigh in this assessment include the Petitioner’s prior statements about the plea bargain, the
strength of his connection to the United States, and most prominently, the likelihood of success
at trial and the potential impact upon immigration consequences if conviction occurs. Id. at 725.
In Petitioner’s case, a full assessment of the situation reveals that a reasonable person in his
position would not have rejected an offered plea bargain and proceeded to trial.
Petitioner has shown that throughout the litigation process he was gravely concerned with
the potential for deportation. He alerted Attorney Brendanawicz to this concern repeatedly and
the trial transcript reveals that Attorney Brendanawicz took Petitioner’s statements seriously.
Attorney Brendanawicz alerted the judge that Petitioner was “concerned with deportation” and
asked for lenience where possible. R. at 25. However, unfortunately for Petitioner, the only
possible result that would foreclose the possibility of deportation was the unlikely acquittal of all
charges. Plainly, the multitude of physical evidence recovered by Deputy Sanderson weighs
heavily, nearly completely, against any chance of achieving a full acquittal. The record clearly
29
indicates, and Petitioner has provided nothing to dispel, that Petitioner lacked any meaningful
ability to rebut the charges against him. Further, proceeding to trial would have made Petitioner
eligible for additional jail time, without lessening the risk of deportation. As was the case in the
Fifth Circuit’s United States v. Kayode, the evidence suggests that the Petitioner’s decision to
accept a plea bargain was the rational choice under the circumstances, and therefore, he has
failed to show evidence of prejudice in his claim against Attorney Brendanawicz. See Hill v.
Lockhart, 474 U.S. 52, 56–58 (1985) (noting that an assessment of prejudice will partially
depend upon an assessment of the likeliness of success at trial); Kayode, 777 F.3d at 719. It
follows that his claim fails to satisfy the second prong required under Strickland and should
therefore be dismissed.
Certainly, the situation in which the Petitioner finds himself is not enviable. However, his
hopelessness is no reason for this court to seriously consider such a baseless claim. This Court’s
purpose is to uphold the Constitution’s guarantees and afford each criminal defendant with a fair
trial. The record indicates that Petitioner was granted a fair trial, despite his assertions to the
contrary. He misconstrues the holdings of Padilla in his assertion that Attorney Brendanawicz
gave deficient advice about immigration consequences. Subsequent courts, including this one,
have held that Padilla requires nothing substantively beyond compelling some advice about
immigration consequences, and specify that such advice be correct. Attorney Brendanawicz
provided Petitioner with competent counsel when he advised of a ‘strong possibility’ of
deportation. Petitioner’s arguments fail to satisfy the first prong of Strickland, and that alone
should constitute the end of the inquiry. See Strickland, 466 U.S. at 697 (stating that a
defendant’s failure to show prejudice can effectively end the inquiry and obviate the court’s need
to analyze the purported deficiency of counsel).
30
Proceeding to the second prong of Strickland, for the sake of thoroughness, produces the
same result. Given the statements of the district court judge coupled with the strong possibility of
deportation upon going to trial, there is no indication that Petitioner acted irrationally when he
admitted his guilt and accepted the State’s plea bargain. Albeit grappling with a tough situation,
Petitioner made his plea knowingly and voluntarily, and should be bound by his admission.
CONCLUSION
Deputy Sanderson’s search of Petitioner’s vehicle after Petitioner consented to the search
did not violate Petitioner’s Fourth Amendment rights because Petitioner’s consent was untainted
by any illegal seizure. Petitioner has provided insufficient evidence to show that Attorney
Brendanawicz’s representation rose to the requisite level of deficiency necessary to violate
Petitioner’s right to counsel under the Sixth Amendment. For these reasons, we respectfully
request that this Court affirm the judgment of the Supreme Court of Eagleton.
TEAM 24 Counsel for Respondent