Team No. 29
In The
Supreme Court of the United States
Kenny Bearson
Petitioner,
v.
United States of America
Respondent.
On Writ of Certiorari From the United States Court of
Appeals for the Thirteenth Circuit
Brief for Petitioner
Counsel for Petitioner
1 TABLE OF CONTENTS
Table of Contents .................................................................................................. i
Table of Authorities ............................................................................................ iv
Questions Presented .........................................................................................viii
Statement of Jurisdiction ................................................................................... ix
Statement of Facts ............................................................................................... 1
Summary of the Argument .................................................................................. 4
Argument .............................................................................................................. 8
I. The Trial Court Violated Kenny’s Fourth Amendment Protection Against
Unreasonable Search and Seizure by Admitting Evidence Seized From an
Unreasonable Search. .................................................................................. 8
A. Caroline Did Not Have Actual Authority to Consent to the Search. . 9
1. This Court Should Review De Novo the Ruling of the Trial Court
That Caroline had Actual Authority to Consent to the Search. .... 9
2. Caroline Did Not Have Mutual Use of, Joint Access to, or Control
For Most Purposes of, the Home. .................................................. 10
B. Caroline Did Not Have Apparent Authority to Consent to the
Search. ................................................................................................. 11
1. This Court Should Review De Novo the Trial Court’s Ruling That
Caroline Had Apparent Authority to Consent to the Search. ..... 12
i
2. The Facts Available to Detective Binger Would Not Warrant a
Man of Reasonable Caution to Believe That She Had Authority
Over the Premises. ........................................................................ 12
C. A Warrantless Search is Unlawful if a Defendant Refuses to
Consent to a Search of His Home Unless a Third Party With Actual
Authority Consents to the Search in the Defendant’s Absence. ...... 13
II. This Court Should Reverse the Judgment Because the Trial Court
Deprived Kenny of His Fundamental Right to Present a Defense When
it Denied His Motion For a New Trial Under Federal Rules of Criminal
Procedure 33(b)(1)..................................................................................... 15
A. Leopold Lara, Jr.’s Confession is Material to Kenny’s Trial. ........... 16
1. The Trial Court Erred by Refusing to Admit Vital Evidence by
Mechanistically Relying on the Rule Against Hearsay. .............. 17
2. The Trial Court Erred by Not Applying the Statement Against
Interest Exception to Lara’s Confession. ..................................... 18
a. Lara’s Confession Subjected Him to Criminal Prosecution. .... 19
b. Lara’s Confession Was Trustworthy. ........................................ 19
B. Admitting the Confession Would Probably Result in Kenny’s
Acquittal. ............................................................................................. 21
1. Lara’s Confession Probably Would Have Raised a Reasonable
Doubt of Kenny’s Guilt. ................................................................ 22
a. Evidence of Lara’s Confession is Grounds for a New Trial. ... 23
ii
b. The Trial Court Should Have at Least Granted Kenny an
Evidentiary Hearing to Determine the Potential Effect of
Lara’s Confession...................................................................... 23
Conclusion .......................................................................................................... 24
iii
TABLE OF AUTHORITIES
Constitutional Provisions
U.S. Const. amend IV .......................................................................................... 8
U.S. Const. Art. III § 2, cl. 2 ............................................................................... ix
Federal Rules
Fed. R. Crim. P. 33 .................................................................................. 3-5, 6, 16
Fed. R. Evid. 804 ................................................................. 3-4, 17, 18-19, 19-20
United States Supreme Court Cases
Chambers v. Miss.,
410 U.S. 284 (1973) ............................................................................ 7, 15, 17-18
Crane v. Ky.,
467 U.S. 683 (1986) ........................................................................................... 15
Elkins v. United States,
364 U.S. 206 (1960) ............................................................................................. 8
Fernandez v. California,
134 S.Ct. 1126 (2014) ................................................................................... 14-15
Georgia v. Randolph,
547 U.S. 103 (2006) .................................................................................. 9, 13-15
Herring v. N.Y.,
422 U.S. 853 (1975) ............................................................................................. 4
Illinois v. Rodriguez,
497 U.S. 177 (1990) ............................................................................... 8, 10, 11ß
iv
Katz v. United States,
389 U.S. 347 (1967) .............................................................................................. 9
Payton v. N.Y.,
445 U.S. 573 (1980) ............................................................................................. 8
Williamson v. United States,
512 U.S. 594 (1994) ..................................................................................... 19, 20
Federal Cases Casias v. United States,
337 F.2d 354 (10th Cir. 1964) ....................................................................... 6, 23
DeBinder v. United States,
303 F.2d 203 (D.C. Cir. 1962) ..................................................................... 23, 24
Rivera v. Dir., Dep’t Corrs.,
915 F.2d 280 (7th Cir. 1990) ............................................................................. 17
United States v. Flintroy,
30 F. Supp. 3d 616 (W.D. Ky. 2014) ............................................................ 10-11
United States v. Garcia,
986 F.2d 1135 (5th Cir. 1993) ........................................................................... 20
United States v. Garcia,
19 F.3d 1123 (6th Cr. 1994) .............................................................................. 16
United States v. Gevedon,
214 F.3d 807 (7th Cir. 2000) ............................................................................. 10
United States v. Gonzalez,
938 F. Supp. 1199 (D. Del. 1996) ...................................................................... 22
v
United States v. Gutierrez-Hermosillo,
142 F.3d 1225 (10th Cir. 1998) ......................................................................... 10
United States v. Hamilton,
559 F.2d 1370 (5th Cir. 1977) ........................................................................... 23
United States v. Hudson,
405 F.3d 425 (6th Cir. 2005) ............................................................................. 12
United States v. James,
353 F.3d 606 (8th Cir. 2003) ............................................................................. 12
United States v. Kim,
105 F.3d 1579 (9th Cir. 1997) ..................................................................... 10, 12
United States v. Riggs,
495 F. Supp. 1085 (M.D. Fla. 1980) .................................................................. 16
United States v. Rith,
164 F.3d 1323 (10th Cir. 1999) ......................................................................... 10
United States v. Silverstein,
732 F.2d 1338 (7th Cir. 1984) ........................................................................... 21
United States v. Slade,
980 F.2d 27 (1st Cir. 1992) ................................................................................ 16
United States v. Stewart,
93 F.3d 189 (5th Cir. 1996) ............................................................................... 12
vi
United States v. Westmoreland,
240 F.3d 618 (7th Cir. 2001) ............................................................................. 20
State Cases
Coleman v. State,
321 P.3d 901 (Nev. 2014) ............................................................................ 19, 20
Johnson v. United States,
552 A.2d 513 (D.C. 1989) .................................................................................. 22
State v. Gillispie,
2012-Ohio-1956 (Ct. App.) ........................................................................... 21-22
State v. Rivera,
844 A.2d 191 (Conn. 2004) ................................................................................ 20
State v. Vollbrecht,
820 N.W.2d 443 (Wis. Ct. App. 2012) ............................................................... 23
State v. Ways,
850 A.2d 440 (N.J. 2004) ................................................................................... 16
Secondary Sources ......................................................................................... 6
The Compulsory Process Clause,
73 Mich. L.R. 71 ................................................................................................. 18
vii
QUESTIONS PRESENTED
1. Under the Fourth Amendment’s protection against unreasonable searches
and seizures, does third-party consent validate a warrantless search when the
defendant has already refused entry and the third party does not live at the
residence and communicates to the authorities seeking consent that she is merely a
casual visitor?
2. Under the Fourteenth Amendment Due Process Clause and the Sixth
Amendment Compulsory Clause, does a trial court violate a defendant’s
constitutional right to present a defense when the court summarily denies a motion
for a new trial to admit a newly acquired third-party confession to the crime for
which the defendant is charged when the confession falls under a hearsay exception
and would probably change the outcome of the trial?
viii
STATEMENT OF JURISDICTION
The United States Court of Appeals for the Thirteenth Circuit had
jurisdiction pursuant to 29 U.S.C. § 1291. The final judgment of the district court
disposed of all parties and issues, and the defendant timely filed notice of appeal.
This Court has federal question jurisdiction pursuant to U.S. Const. Art. III §
2, cl. 2. based on defendant, Kenny Bearson’s, allegation that an unreasonable
search and seizure violated his rights under the Fourth Amendment of the United
States Constitution and that he was denied the right to present a complete defense
as guaranteed by the United States Constitution.
ix
STATEMENT OF FACTS
Background. On January 1, 2010, Chaostown police found a car with two
bodies, one male and one female, inside of it. Both passengers died of gunshot
wounds from a .30 caliber gun, but the female victim had “pass-through” wounds
resulting from the bullets passing through the male victim. Police received an
anonymous phone tip that morning that the shootings were the result of a “drug
deal gone bad.” Record 1.
Lead Detective Binger of Chaostown police spoke with Jessica Minder
(Minder), who stated that she was with Kenny Bearson (Kenny), Sandy Bearson
(Sandy), and Robert Clark (Clark) on the night of the shootings and that she did not
know anything about the events. Binger visited Kenny’s home to interview him and
to “look around.” Kenny refused consent for Binger to search his home. Record 2.
Months later, Minder changed her story. Minder claimed that while Kenny
was driving her home, Kenny stopped the truck and she got out to vomit. Clark got
out to check on her. Minder thought she heard some popping noises while she was
vomiting behind the truck. Minder claimed to have seen a car with its headlights on
facing Kenny’s truck and two bodies in the vehicle slumped over and bloody. Minder
then ran through a field to her home. Record 3-4.
Minder’s story prompted Binger to re-interview Kenny. Binger went to
Kenny’s home. Binger smelled burnt marijuana coming from the home. Kenny’s
youngest sister Caroline Bearson (Caroline) answered the door and stated Kenny
was not home. Binger asked if officers could enter the home, and Caroline refused.
1
She stated she was currently undergoing chemotherapy treatments in Chaostown,
her home was three hours away, and she recovered at Kenny’s house after
treatments. Caroline also stated she had a prescription for the medical marijuana
she was smoking. Binger asked to see Caroline’s prescription, but she did not have
it with her. Binger stated he would obtain a search warrant. Caroline then allowed
the officers to come inside the house, but said they should not go into Kenny’s room
or bathroom because she was not even allowed in there. Record 4-5.
Binger found a receipt on the kitchen table that revealed that Kenny had
pawned several rifles, including some capable of shooting .30 caliber bullets, three
weeks after the shooting. Binger could not locate the rifles. Record 5.
Around one month later, Binger interviewed Clark again. Clark stated that
on the night of the shootings, Kenny passed a car on the road and then turned his
truck around. Kenny parked facing the other vehicle, which had stopped. Clark got
out to check on Minder, who was throwing up. Clark stated he could not see more
than a few feet away, but that he saw a black figure reach in the back seat of the
truck and walk to the parked car. Clark then heard four to five popping sounds.
Clark got back in the truck with Kenny, and the group, minus Minder, drove off.
Record 6.
Procedural Background. Kenny was charged with two counts of firstdegree murder. Kenny’s trial counsel moved to suppress the pawn receipt because it
was obtained from an unconstitutional search. The trial court denied the motion
and the prosecution introduced the receipt as well as evidence that both victims
2
died of .30 caliber gunshot wounds. The prosecution’s only other evidence against
Kenny was Minder and Clark’s testimony.
Kenny was convicted of two counts of first-degree murder. Kenny appealed to
the U.S. Court of Appeals for the Thirteenth Circuit. Kenny argued his Fourth
Amendment rights were violated by the search of his home. Record 7.
During the appeal, a County Sheriff’s Office deputy reported to Detective
Binger that another deputy, Laura Finster (Finster), informed him that Leopold
Lara, Jr. (Lara) confessed to committing the double homicide. Binger interviewed
Finster, who stated that some time after murders, Finster was involved in a highspeed chase with Lara, who was driving intoxicated. Record 7-8. Once Finster
finally arrested Lara, Lara began to cry and stated that he was “sorry he killed
those kids,” that he “didn’t mean to shoot the girl,” and that he used a .30 caliber
rifle. Record 8. Instead of arresting Lara for evading arrest and driving while
intoxicated, Finster took Lara home. Finster is Lara’s niece. She stated that Lara
and his father often trade marijuana for guns. Record 8-9.
Binger interviewed Lara, who denied confessing to the murders but said he
may have said something to Finster that could be construed as a confession. A week
later, Lara died from liver issues. Record 9.
Kenny’s attorney learned of Lara’s confession and filed a motion under Rule
33(b)(1) of the Federal Rules of Criminal Procedure for a new trial based on newly
discovered evidence. Both sides stipulated Lara was unavailable under Federal
Rules of Evidence 804, and the confession could only be admitted through another
3
party. The trial court denied the new trial motion, finding the confession to be
inadmissible hearsay and ruling that even if the confession had been admitted, it
would not have affected the outcome of Kenny’s trial.
The Thirteenth Circuit affirmed the conviction, holding: (1) the search of
Kenny’s home was not unlawful because Caroline had authority to consent; (2) the
pawn receipt was in plain view and subject to seizure; and (3) the trial court did not
err in ruling the confession was inadmissible hearsay because it lacked adequate
indicia of trustworthiness and, even if admitted at trial, it would not have affected
the outcome. Record 9-10.
SUMMARY OF THE ARGUMENT
The Framers of the United States Constitution took great care to guarantee
certain rights and protections to persons accused of committing crimes, and this
Court takes great care to protect those rights. Herring v. New York, 422 U.S. 853,
857 (1975) (“The decisions of this Court have not given to [6th Amendment]
provisions a narrowly literalistic construction”). When a court’s rulings work to
violate these essential rights, this Court has the power and the duty to protect the
constitutional rights of the accused.
The Thirteenth Circuit Court of Appeals incorrectly upheld Kenny’s
conviction based on improperly obtained evidence and incorrectly upheld the trial
court’s denial of Kenny’s Rule 33 motion. First, the trial court erroneously admitted
evidence to trial that was the product of an unreasonable, and therefore
4
unconstitutional, search and seizure. Second, the trial court erroneously deprived
Kenny of the right to present a defense by denying his Rule 33 motion.
The constitutional right to be free from unreasonable searches and seizures
imposes a duty on trial courts to determine when evidence is the product of an
unconstitutional search. The trial court violated Kenny’s Fourth Amendment rights
by admitting evidence seized from a warrantless search of his home without valid
consent. A warrantless search or seizure is unconstitutional per se. Although
obtaining consent is one way to defeat this intrinsic unconstitutionality, the state
actor must obtain consent from someone who has authority to consent. Third parties
may consent to a search of a defendant’s home or property under two narrow
circumstances: (1) the third party has actual, or common, authority to consent in his
or her own right; or (2) the third party had apparent authority because the state
actor reasonably believed that the third party had authority to consent to a search
of the defendant’s property. If the third party has neither actual nor apparent
authority, the third party cannot consent to a search. Here Caroline had no
authority.
The court below erred by determining that Caroline has actual authority. The
cases in which federal courts have found actual authority to exist are limited to
those cases in which the third party is a co-occupant of the property or has control
over the property. Because Caroline was not a co-occupant and because she did not
have shared access to or control over the house for most purposes, Caroline did not
have actual authority to consent to a search of Kenny’s home.
5
Caroline also lacked apparent authority. In order for a third party to have
apparent authority, the officer conducting the search must have reasonably believed
that the third party had authority to consent to a search. Here, Caroline very
clearly indicated to Detective Binger that she did not live at Kenny’s house, that she
was a resident of another town, and that she did not have access to certain areas of
the house. A reasonable officer would have inquired further into Caroline’s
authority before taking advantage of her consent.
Further, Caroline could not validly consent to the search because the actual
sole owner of the home, Kenny, had previously refused entry and Caroline did not
have actual authority to override that refusal. Kenny clearly denied Officer Binger
entry. Caroline was not a co-occupant of the home and did not otherwise have actual
authority. Therefore, even if the Court finds that Caroline had apparent authority
to consent to the search, apparent authority is not sufficient to overrule an absent
defendant’s previous denial of consent to a warrantless search.
The trial court also erred by denying Kenny’s Rule 33 motion based upon
newly acquired evidence on the grounds that the evidence was inadmissible hearsay
and would not have resulted in a different outcome at a new trial. The Constitution
grants criminal defendants a right to present exculpatory evidence. Kenny
attempted to present evidence of third-party culpability, which is undoubtedly
grounds for a new trial. Casias v. United States, 337 F.2d 354, 356 (1964). The trial
court abused its discretion by excluding this evidence.
6
The trial court erred in denying the motion by using a mechanistic
application of the rules of evidence to exclude potentially exculpatory evidence.
First, a trial court may not mechanistically apply evidentiary rules to exclude
evidence that is relevant to a defendant’s defense that he did not commit the crime
of which he is accused. To do so is to defeat the ends of justice. Chambers v. Miss.,
410 U.S. 284, 302 (1973).
When a statement falls under an exception to the rule against hearsay and
bears assurances of trustworthiness, the trial court misapplies the law if it does not
admit the statement under the exception. Here, the hearsay evidence was Lara’s
confession to the crimes of which Kenny is accused. Although the confession meets
the requirements of hearsay evidence, it also meets the requirements of the
statement against interest exception to the rule against hearsay because it (1)
subjects the declarant to criminal prosecution; and (2) is clearly corroborated as to
guarantee its own trustworthiness. Here, Lara’s confession of committing a very
serious crime to a police officer clearly subjected him to criminal
prosecution. Furthermore, Lara’s confession can be corroborated by several other
pieces of evidence in the record. Here, the trial court abused its discretion by not
finding that the evidence in the record corroborated Lara’s confession.
Second, the trial court incorrectly concluded that Lara’s confession would not
affect the outcome of Kenny’s trial. Lara’s confession combined with the evidence in
the record probably would have produced an acquittal at a second trial because it
presented evidence of a viable alternative suspect. The trial court should have at
7
least granted Kenny an evidentiary hearing to determine the potential effect of
Lara’s confession. Here, the trial court merely concluded that the evidence would
not have changed the outcome of the trial. The trial court should have afforded
Kenny an opportunity to present evidence that the confession would probably have
produced an acquittal.
For these reasons, this Court should reverse the Thirteenth Circuit Court of
Appeals’ judgment and grant Kenny a new trial.
ARGUMENT
I. The Trial Court Erred by Admitting Evidence Seized From an
Unreasonable Search in Violation of Kenny’s Fourth Amendment
Protection Against Unreasonable Searches and Seizures.
The Fourth Amendment to the United States Constitution guarantees the
right to be free from unreasonable searches and seizures of persons, houses, papers,
and effects. U.S. Const. amend. IV. When a police officer obtains evidence from an
unreasonable search or seizure, that evidence is inadmissible in a federal criminal
trial. Elkins v. United States, 364 U.S. 206, 223 (1960). A police officer’s
warrantless search of a home is unreasonable per se. Payton v. New York, 445 U.S.
573, 586 (1980). However, when an individual possessing authority consents to a
warrantless search, the search is reasonable. Illinois v. Rodriguez, 497 U.S. 177,
181 (1990). A third party may consent to a search only if the third party has actual
(common) authority or if the police reasonably, but erroneously, believed that the
8
third party shared authority as an occupant (apparent authority). Georgia v.
Randolph, 547 U.S. 103, 109 (2006).
Here, Detective Binger conducted a warrantless search of Kenny’s home and
seized a pawn shop receipt that was used against Kenny in his criminal trial.
Detective Binger relied on alleged consent from Caroline. However, Caroline did not
possess actual or apparent authority to consent. Further, any alleged consent from
Caroline was invalid because Kenny had previously refused entry. Detective
Binger’s search was therefore unreasonable and the trial court should have
excluded any evidence gained therefrom in the criminal trial against Kenny.
A. Caroline Did Not Have Actual Authority to Consent to the
Search.
A third party has actual authority when the person has mutual use of a home
by having “joint access or control for most purposes, so that it is reasonable to
recognize that any of the co-inhabitants has the right to permit the inspection in his
own right and that the others have assumed the risk that one of their number
might permit the common area to be searched.” Randolph, 547 U.S. at 110 (citing
Katz v. United States, 389 U.S. 347, 352-53 (1967)).
1. This Court Should Review De Novo the Ruling of the
Trial Court That Caroline Had Actual Authority to
Consent to the Search.
Whether a third party has actual authority to consent to a search of a
defendant’s property is a question of whether consent was valid under the Fourth
9
Amendment and, as such, is a question of law to be reviewed de novo. United States
v. Rith, 164 F.3d 1323, 1328 (10th Cir. 1999); U.S. v. Gutierrez-Hermosillo, 142 F.3d
1225, 1229 (10th Cir. 1998); United States v. Kim, 105 F.3d 1579, 1581-82 (9th Cir.
1997); U.S. v. Gevedon, 214 F.3d 807, 810 (7th Cir. 2000).
2. Caroline Did Not Have Mutual Use of, Joint Access
to, or Control for Most Purposes of, the Home.
Whether an individual has actual authority depends on whether the
individual had joint access to or control for most purposes of the home. Rodriguez,
497 U.S. at 181-82. This Court looks to several factors, including how frequently the
individual stays in the home, whether she is on the lease, whether she pays rent,
whether she has a key, whether she leaves items in the home, and whether she may
be in the home without the defendant present.
Here, Caroline did not have joint access or control for most purposes because:
(1) Caroline’s name was not on the lease or deed of Kenny’s home; (2) Caroline did
not have a key; (3) Caroline did not pay rent or mortgage for the home; (4) Caroline
never moved into the home; (5) Caroline never stayed the night at the home; (6)
Caroline did not leave personal effects or furniture in Kenny’s home; and (7)
Caroline did not invite friends over to Kenny’s home.
This case is similar to United States v. Flintroy, where the police arrived at
the defendant’s home without a warrant and a non-resident third party opened the
door and granted the police access. United States v. Flintroy, 30 F. Supp. 3d 616,
620 (W.D. KY 2014). The individual claimed he was using the basement as a
10
recording studio, he lived in the neighborhood, and he could “come and go as he
pleased regardless of whether anyone was home.” Id. The detective determined that
the young man had “control” of the house and asked if he could enter and search the
home. The man agreed to let him inside. The court found that the third party lacked
actual authority to consent to a search because he was not a caretaker of the home,
he did not occupy the home for an extended period of time, and and his use was
confined to limited parts of the home. Id. at 624.
Here, Caroline was not a caretaker and had only limited access to certain
areas of the home. Seemingly the only factor that would suggest that Caroline had
actual authority to consent to a search of the home was her ability to be physically
present in the home without the defendant being present. Record 5. However,
because the great majority of relevant factors suggest that Caroline did not have
mutual use of the home nor did she have joint access to or control for most purposes
of the home, Caroline did not have actual authority to consent to a government
search of Kenny’s home.
B. Caroline Did Not Have Apparent Authority to Consent to the
Search.
Further, the search was invalid because Caroline did not have apparent
authority to consent to a search of Kenny’s home. Whether apparent authority
exists depends on whether the facts available to the police “at the moment…[would]
warrant a man of reasonable belief that the consenting party had authority over the
premises.” Rodriguez, 497 U.S. at 188-89.
11
1. This Court Should Review De Novo the Trial Court’s
Ruling That Caroline Had Apparent Authority to Consent
to the Search.
Whether an officer was reasonable in finding that a third party had apparent
authority to consent to a search of a defendant’s home is a question of objective
reasonableness—a question of law—that courts review de novo. United States v.
Hudson, 405 F.3d 425, 431 (6th Cir. 2005); United States v. James, 353 F.3d 606,
613, 615 (8th Cir. 2003); United States v. Stewart, 93 F.3d 189, 192 (5th Cir. 1996);
Kim, 105 F.3d at 1581-82.
2. The Facts Available to Detective Binger Would Not
Warrant an Officer of Reasonable Caution to Believe
That Caroline Had Authority Over the Premises.
The information available at the moment of the search would not warrant a
reasonable officer to believe that Caroline had authority to allow the search
because: (1) Caroline identified herself as the sister of the defendant rather than a
spouse, cotenant, or parent of the defendant; (2) Caroline denied entry to Kenny’s
home when the officers asked to come in; (3) Caroline said that she lived in her own
home, which was three hours away; (4) Caroline stated she only came to town to
seek chemotherapy treatment; (5) Caroline stated she merely stayed in Kenny’s
home as long as she needed to recover without indicating to the officers how long or
short her visits were; (6) Caroline only consented to the search of Kenny’s home
after the officers stated they would pursue a search warrant; (7) Caroline told the
12
officers not to go in Kenny’s bathroom or bedroom because she, as a visitor, did not
have access to those two areas. Record 5. Further, Binger had no indication that
Caroline had a key, that her name was on the lease or deed to the property, that she
paid rent, or that she left personal property or furniture at the home.
In light of the facts of this case, it is evident that at the moment of contact, a
reasonable officer would not have been warranted in believing Caroline had
authority over the premises. Therefore, it was unreasonable for the officers to
conclude that Caroline had authority to consent to the search of the home.
C. A Warrantless Search is Unlawful if a Defendant Refuses to
Consent to a Search of His Home Unless a Third-Party With
Actual Authority Consents to the Search in the Defendant’s
Absence.
Even if the facts would otherwise support a finding of apparent authority, the
search is unlawful because Kenny previously explicitly denied police officers the
right to search his home. Under the precedent of this Court, Kenny’s refusal
prohibits police from entering unless another person with actual authority later
gives consent sufficient to override that refusal. Here, Caroline did not have any
form of actual authority and therefore could not override the explicit refusal of the
property owner.
This Court has held that a homeowner’s refusal to allow entry prohibits
police officers from obtaining consent from another person in the home. In Randolph,
police arrived at the defendant’s home and the defendant’s wife stated the
13
defendant had drugs in the home. The defendant refused consent for the police to
enter, but his wife consented to the search. The police found cocaine and arrested
the defendant. Randolph, 547 U.S. at 107. This Court ruled that the wife was a cooccupant of the home and had actual authority to consent but had no authority in
law or social practice to prevail over her husband’s refusal to consent to the search.
Id. at 122-23. In other words, when a defendant is present and refuses to consent to
a search, the subsequent consent of a fellow occupant, co-tenant, or person with
actual common authority does not validate the search.
In Fernandez v. California, the Court created an exception to the general rule
created in Randolph whereby a third party with actual authority could consent to a
search after the absent defendant had previously objected when the defendant was
not physically present because the third party had full authority over the home.
Fernandez v. California, 134 S.Ct. 1126, 1137 (2014).
In both Randolph and Fernandez, the consenting third party had actual
authority to consent to a search of the premises in her own right, and the question
was about the scope of that authority at the moment consent was given. In
Randolph it was only partial because there was someone else with actual authority
present.
In the instant case, Caroline did not have actual authority to consent to a
search of Kenny’s home. This Court has not applied Randolph or Fernandez to cases
where the third party who consents to the search merely has apparent authority
and the owner of the home has previously denied consent to search the home, but
14
the logic of Randolph and Fernandez suggest that apparent authority can never be
enough to override the explicit refusal of someone with actual authority. The Court
today should reaffirm the holdings in Fernandez and Randolph and rule that third
party must have actual authority in order for the third party to give valid consent to
search the home of a non-present defendant who has previously denied police entry
into the home. This is the line that this Court drew in Randolph and Fernandez,
and it is the line that should apply here.
II. This Court Should Reverse the Judgment Because the Trial Court
Deprived Kenny of His Fundamental Right to Present a Defense When
it Denied His Motion For a New Trial Under Federal Rules of Criminal
Procedure 33(b)(1).
Whether rooted directly in the Due Process Clause of the 14th Amendment or
the Compulsory Process Clause of the 6th Amendment, the Constitution guarantees
criminal defendants “a right to present a complete defense.” Crane v. Ky., 476 U.S.
683, 690 (1986). The State may not exclude competent, reliable evidence when the
evidence is central to a defendant’s claim of innocence. Id This includes evidence
that a third party committed the crime of which he has been charged. Chambers,
410 U.S. at 302.
The same right that prohibits courts from arbitrarily excluding evidence
requires a court to grant a new trial in certain cases where exculpatory evidence is
discovered after trial. Federal Rules of Criminal Procedure 33(b)(1). Under Rule 33,
a trial court should grant a motion for a new trial when the moving party can
15
demonstrate that: (1) the evidence was unknown or unavailable to the defendant at
the time of the trial; (2) failure to learn of the evidence was not due to lack of
diligence by the defendant; (3) the evidence is not merely cumulative or impeaching;
(4) the evidence is material to the defendant’s case; and (5) the newly discovered
evidence will probably result in an acquittal upon retrial of the defendant. U.S. v.
Garcia, 19 F.3d 1123, 1126 (6th Cir. 1994); U.S. v. Slade, 980 F.2d 27, 29 (1st Cir.
1992).
Here the trial court abused its discretion by failing to grant a new trial where
all five of those factors were satisfied. The first three factors are undisputed. As to
the first and second Rule 33 requirements, Lara’s confession was not readily
discoverable at trial because neither the prosecution nor the defense knew of Lara’s
confession until after trial. The third requirement of Rule 33 is met because Lara’s
confession creates a completely new viable alternative suspect, and therefore the
confession is not cumulative or impeaching. The dispute here is about the final two
elements of the Rule 33(b)(1) analysis: materiality and probability of acquittal.
Lara’s confession meets these two requirements.
A.
Leopold Lara, Jr.’s Confession is Material to Kenny’s Trial.
Material evidence is defined as evidence which is relevant and goes to the
substantial matters in dispute or has a legitimate and effective influence or bearing
on the decision of the case. U.S. v. Riggs, 495 F. Supp. 1085, 1090 (M.D. FL 1980)
(citing Black’s Law Dictionary). Evidence that supports a defense, such as third
party guilt, would be material evidence. State v. Ways, 850 A.2d 440, 450 (NJ 2004).
16
Evidence that someone other than the defendant killed the victims is material
evidence because it relates “directly to the focal issue of the trial.” Id. Here, Lara’s
confession is evidence that supports Kenny’s defense because the confession is
evidence that Lara, not Kenny, committed the murders. The confession is clearly
material to the case at hand because Kenny’s guilt or innocence is the central issue
of the trial.
Here, the trial court determined that the newly discovered confession was not
material to Kenny’s case because it was inadmissible hearsay. However, the trial
court erred in ruling that the confession was hearsay because the confession falls
under the statement against interest exception found in Fed. R. Evid. 804(b)(3).
1. The Trial Court Erred in Refusing to Admit Vital
Evidence by Mechanistically Relying on the Rule Against
Hearsay.
If the defendant tenders vital exculpatory evidence, the trial court cannot
refuse to admit the evidence without giving a better reason than a mechanistic
recitation of hearsay. Rivera v. Dir., Dep't of Corrs., 915 F.2d 280, 281 (7th Cir.
1990). When a statement with persuasive assurances of trustworthiness falls within
an exception to allow introduction of hearsay evidence, the trial court cannot
mechanistically apply the rule against hearsay to defeat the ends of justice.
Chambers, 410 U.S. at 302.
Here, Lara’s confession amounted to vital exculpatory evidence in a case in
which the government did not have very strong evidence to begin with. The
17
evidence is vital because the confession goes to the heart of Kenny’s defense of
innocence. The trial judge’s initial determination that the evidence would not be
admissible because it is hearsay is not a sufficient reason to refuse Kenny a new
trial based on the confession. The trial court justified its exclusion of Lara’s
confession exculpating Kenny by mechanistically applying the rule against hearsay
to vital evidence implicating Kenny’s innocence. Id. at 283. This violated Kenny’s
right to present a defense.
2. The Trial Court Erred by Not Applying the Statement
Against Interest Exception to Lara’s Confession.
The accused in a criminal proceeding has a constitutional right to introduce
any favorable evidence unless the state can demonstrate that it is so inherently
unreliable as to leave the trier of fact no rational basis for evaluating its truth. The
Compulsory Process Clause, 73 Mich. L.R. 71 at 151-52, 155, and 159.
The court must admit an otherwise inadmissible hearsay statement if the
statement falls under one of the hearsay exceptions. Fed. R. Evid. 804. Here, Lara’s
confession meets the requirements of the statement against interest exception to
the rule against hearsay. Fed. R. Evid. 804(b)(3). The statement against interest
exception applies to statements made by an unavailable declarant that are against
the declarant’s interest. When the statement tends to exculpate the defendant, the
defense must show corroborating circumstances that indicate the statement’s
trustworthiness. Fed. R. Evid. 804(b)(3). A court may not apply the standard of
admissibility of a statement against interest offered to exculpate the defendant so
18
rigorously that it infringes on the defendant’s constitutional right to present a
meaningful defense. Coleman v. State, 321 P.3d 901, 903 (Nev. 2014).
a. Lara’s Confession Subjected Him to Criminal
Prosecution.
The statement against interest exception requires that a declarant make a
statement that is so contrary to his penal interest that it tends to subject him to
criminal liability. If the statement tends to exculpate the defendant, the defendant
must prove circumstances that clearly corroborate the trustworthiness of the
statement.
The principle behind Rule 804(b)(3) is that reasonable people, even
reasonable people who are not especially honest, tend not to make selfincriminating statements unless they believe them to be true. Williamson v. United
States, 512 U.S. 594, 599 (1994).
Here, Lara’s confession to murdering two people is so contrary to his penal
interest that it tends to subject him to criminal liability. A reasonable person would
not typically admit to murder unless he or she believed the statement to be true
because a confession to murder almost always results in criminal prosecution. Fed.
R. Evid. 804(b)(3). Furthermore, Lara confessed to the murders to a police officer,
which increased the chances of his being exposed to criminal liability.
b. Lara’s Confession Was Trustworthy.
If the statement against a declarant’s interest tends to exculpate the
defendant, the defendant must prove circumstances that clearly corroborate the
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trustworthiness of the statement. Fed. R. Evid. 804(b)(3). The district judge does
not need to be completely convinced that exculpatory statements are true prior to
their admission. United States v. Garcia, 986 F.2d 1135, 1141 (5th Cir. 1993). The
district court must find only that corroborating circumstances exist and then permit
the jury to make the ultimate determination regarding the truth of the statements.
Id. If the nature and strength of independent evidence support the admission of the
statement, the trial court abuses its discretion by excluding the statement. Coleman,
321 P.3d at 910.
The fact that the police officer was Lara’s niece enhances the trustworthiness
of the confession. Statements made to close family members have particular
guarantees of trustworthiness. United States v. Westmoreland, 240 F.3d 618, 628
(7th Cir. 2001); see also State v. Rivera, 204-05 (2004) (ruling that incriminating
statements made by defendant to nephew were trustworthy). Although statements
to police officers sometimes indicate that the declarant was merely trying to curry
favor with the police officers, such situations often occur during interrogatory
proceedings in which the declarant has something to gain by helping the police or
prosecution with their case. Williamson, 512 U.S. at 601-02. Deputy Finster was not
interrogating Lara in any way when he volunteered his confession. Therefore, the
fact that she was a police officer had less bearing on the trustworthiness of Lara’s
confession and more bearing on the fact that the statement was in fact against his
penal interest.
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The trustworthiness of the confession is further corroborated by its content.
Lara began crying when he confessed that he used a .30 caliber rifle to murder
“those kids” and that he “didn’t mean to shoot the girl.” Record 1, 8. The police
investigation revealed that the murder weapon was a .30 caliber rifle and that the
female victim’s wounds were pass-through wounds. Record at 1. The nature of the
wounds on the female victim is consistent with Lara shooting the male victim on
purpose and the bullets traveling through the male victim to hit the female victim
on accident. U.S. v. Silverstein, 732 F.2d 1338, 1347 (7th Cir. 1984) (holding that
statements that contain facts only the murderer would know are clearly
corroborative). Finally, Lara is the son of a local marijuana dealer who exchanges
drugs for firearms, and the police received an anonymous tip that the murders were
the result of a “drug deal gone bad.” Lara’s confession would significantly
undermine the government’s case against Kenny because the confession would
present the possibility that Lara killed the victims, not Kenny.
B. Admitting the Confession Would Probably Result in Kenny’s
Acquittal.
Where a case does not involve overwhelming evidence of the accused’s guilt,
the newly discovered evidence does not have to conclusively establish the accused’s
innocence. State v. Gillispie, 2012-Ohio-1656 at ¶ 35 (Ct. App.). There is no
requirement that the proffered evidence of a third party’s guilt must prove, or even
raise a strong probability, that someone other than the defendant committed the
offense. Rather, the evidence need only tend to create reasonable doubt that the
21
defendant committed the offense. Johnson v. United States, 552 A2d 513, 516 (D.C.
Cir. 1989).
1. Lara’s Confession Probably Would Have Raised a
Reasonable Doubt of Kenny’s Guilt.
If there is no reasonable doubt about guilt whether or not additional evidence
is considered, there is no justification for new trial based on newly discovered
evidence. United States v. Gonzalez, 938 F. Supp. 1199 (D. Del. 1996) aff'd, 127 F.3d
1097 (3d Cir. 1997). However, the weaker the evidence against the defendant at
trial, the easier it is to show the probability of the new evidence creating reasonable
doubt. Gillispie, 2012-Ohio-1656 at ¶ 35.
Here, the government’s case does not involve overwhelming evidence of
Kenny’s guilt. Lara’s confession presents several questions that would cause a juror
reasonable doubt that Kenny committed the murders. Lara knew that more than
one person had been killed, he admitted he “killed those kids,” he cried as he stated
he did not mean to kill the girl, he confessed to using a .30 caliber rifle, he was the
son of a drug dealer in town, and there is evidence that the murders were the result
of a drug deal gone bad. Record 1. The government relies solely on witness
testimony that does not conclusively establish that Kenny was the shooter and a
pawn shop receipt for a gun of the same caliber as one used by the murderer. Record
7. Based on this underwhelming evidence, a jury would very likely find reasonable
doubt as to Kenny’s guilt if it were presented with evidence of a third party’s
confession to the murders.
22
a. Evidence of Lara’s Confession is Grounds for a New
Trial.
Confession by a third party to the crime of which the defendant has been
tried and convicted is grounds for new trial on the basis of newly discovered
evidence. Casias, 337 F.2d at 356; DeBinder v. United States, 303 F.2d 203, 204
(D.C. Cir. 1962). The integrity of the confession is a matter within the province of
the trial court. Id.
During trial, Kenny was the only suspect in the murders. Given the state’s
limited evidence against Kenny and the potential effect of presenting the jury with
an alternative suspect, the jury could easily reach a different conclusion in a second
trial. State v. Vollbrecht, 820 N.W.2d 443, 458 (Wis. Ct. App. 2012).
In a second trial, the jury would consider Lara’s confession in combination
with the new confession and old evidence. The state’s limited evidence against
Kenny combined with Lara’s confession alone creates a probability of a new jury
finding reasonable doubt that Kenny committed the murders. Because the jury
would be presented with evidence of a viable alternative suspect, a second jury
would likely acquit Kenny of the murders. Id.
b. The Trial Court Should Have at Least Granted
Kenny an Evidentiary Hearing to Determine the
Potential Effect of Lara’s Confession.
A motion for new trial may ordinarily be granted or denied upon affidavits
without an evidentiary hearing. U.S. v. Hamilton, 559 F.2d 1370, 1373 (5th Cir.
23
1977). However, evidentiary hearings are generally warranted when the facts
included in the new evidence differ substantially from those already in evidence.
DeBinder, 303 F.2d at 204.
Lara’s statement warranted an evidentiary hearing because it introduces
facts substantially different from those in evidence--namely, the fact that Lara
could potentially be the murderer. The government’s facts in evidence implicate
Kenny as the sole suspect of the murders. Neither the prosecution nor the defense
introduced evidence suggesting that Lara could have been the murderer. Because
Lara’s confession suggests that he, not Kenny, committed the murders, there
are differences between the facts stated in the confession and the facts in evidence.
Because this material difference exists, the trial court should have tested the
confession in open court by holding an evidentiary hearing.
CONCLUSION
The trial court failed to exclude evidence obtained from an unconstitutional
search and failed to grant a new trial based on evidence that probably would have
resulted in Kenny’s acquittal. In doing so, the trial court deprived Kenny of two of
his most fundamental rights as a criminal defendant and a United States citizen.
For these reasons, Petitioner prays that this Court reverse the decision of the
Circuit Court of Appeals for the Thirteenth Circuit and grant Kenny a new trial in
which the unconstitutionally seized evidence will be excluded and the third party
confession will be admitted.
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