TEAM 39
IN THE
UNITED STATES SUPREME COURT
OCTOBER TERM 2015
No. 15-0319
GARY WALSH,
Petitioner,
v.
STATE OF SETONIA,
Respondent.
__________________________
On Writ of Certiorari to the
Supreme Court of Setonia
__________________________
Counsel for Petitioner
QUESTION PRESENTED
I.
Can a State criminalize a person’s refusal to take a chemical test to identify
the presence of alcohol in his or her blood without a warrant?
II.
Does the Sixth Amendment’s Speedy Trial Clause apply to the sentencing
phase of a criminal prosecution?
i
TABLE OF CONTENTS
QUESTION PRESENTED ................................................................................................... i
TABLE OF CONTENTS ...................................................................................................... ii
TABLE OF AUTHORITIES ................................................................................................. iv
OPINIONS BELOW ............................................................................................................. ix
RELEVANT CONSTITUTIONAL PROVISIONS .............................................................. ix
STATEMENT OF THE CASE ............................................................................................. 1
SUMMARY OF THE ARGUMENT .................................................................................... 5
ARGUMENT ........................................................................................................................ 5
I.
THE SETONIA SUPREME COURT’S RULING SHOULD BE
REVERSED BECAUSE NEITHER THE SEARCH INCIDENT
TO ARREST’S SCOPE, NOR THE CASE LAW SUPPORTING
EXIGENT CIRCUMSTANCES TO SEARCH WITHIN THE
BODY, APPLY TO A BREATHALYZER TEST........................................ 5
A. Because a breathalyzer test requires a grave intrusion into the
human body and goes beyond the scope intended by the search
incident to lawful arrest exception, without a warrant, a chemical
refusal statute which encompasses a breath test, is an unreasonable
search and violates the Fourth Amendment. ........................................... 5
B. Because a per se exception for blood tests in drunk driving
scenarios has failed, the same considerations support a rejection
of a per se exigent exception for breathalyzer tests, including the
gradual dissipation of blood alcohol content from the body, the
possibility that a warrant may be obtained much faster, and
inevitable delays in the chemical test process. ........................................ 10
II.
WHEN THE CONSTITUTION WAS DRAFTED THE WORD TRIAL
INCLUDED THE ACTION OF SENTENCING.......................................... 16
A. The founding fathers looked to Coke on Littleton for guidance
when drafting the Bill of Rights. ............................................................. 17
B. Coke on Littleton has been used to clarify the Constitution and
ii
to settle cases in this Court over fifty seven times.. ................................ 18
C. Speedy trial arose from Coke on Littleton where it stated that
speedy justice means until the end of a criminal case. ............................ 20
III.
CASE LAW IS CONSISTENT WITH THE DEFINITION OF WHAT
THE WORD TRIAL MEANT AT THE TIME THE CONSTITUTION
WAS DRAFTED. .......................................................................................... 21
A. Previous cases before this Court inquiring as to the Sixth
Amendment only involved the time between arrest and trial. ................. 22
B. Several Circuit Courts have recognized that a delay in sentencing
may violate the Sixth Amendment. ......................................................... 24
IV.
THE MODERN POLICY REASONS SUPPORTING A SPEEDY
TRIAL ALSO SUPPORT A SPEEDY SENTENCE BECAUSE A
DEFENDANT AND THE PUBLIC WILL BE NEGATIVELY
AFFECTED WITHOUT SUCH A FINDING .............................................. 25
A. A defendant’s interest in a speedy sentence supports a finding
that the Speedy Trial Clause applies to the sentencing phase
of a criminal prosecution ......................................................................... 26
B. The public’s interest in a speedy sentence supports a finding that
the Speedy Trial Clause applies to the sentencing phase of a
criminal prosecution ................................................................................ 27
V.
A GUILTY VERDICT WOULD NOT BE DISMISSED IF A COURT
FOUND A DELAY IN SENTENCING VIOLATED THE SPEEDY
TRIAL CLAUSE. .......................................................................................... 29
CONCLUSION ..................................................................................................................... 30
iii
TABLE OF AUTHORITIES
Cases: United States Supreme Court
Arizona v. Gant, 556 U.S. 332, (2009). ................................................................................. 5, 9
Bank of U.S. v. Dandridge, 25 U.S. 64 (1827) ...................................................................... 17
Barker v. Wingo, 407 U.S. 514 (1972) .................................................................................. 20, 21, 23
Batson v. Kentucky, 476 U.S. 79 (1986)................................................................................ 17
Boyd v. United States, 116 U.S. 616 (1886) .......................................................................... 17
Broome v. U.S., 56 U.S. 143 (1853) ...................................................................................... 17
Branson v. Wirth, 84 U.S. 32 (1872) ..................................................................................... 17
Calvert v. Bradley, 57 U.S. 580 (1853) ................................................................................. 17
Carmichael v. Southern Coal & Coke Co., 301 U.S. 495 (1937) ......................................... 17
Cassell v. Carroll, 24 U.S. 134 (1826) .................................................................................. 17
Cheang-Kee v. U.S., 70 U.S. 320, (1865) .............................................................................. 17
Chimel v. California, 395 U.S. 752 (1969) ........................................................................... 7, 8
Cohens v. State of Virginia, 19 U.S. 264 (1821) ................................................................... 17
Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36 (1977) ......................................... 17
Cupp v. Murphy, 412 U.S. 291 (1973) .................................................................................. 10, 12
Davis v. Mason, 26 U.S. 503 (1828) ..................................................................................... 17
Dickerson v. Colgrove, 100 U.S. 578 (1879) ........................................................................ 17
Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373 (1911) ........................... 17
Ex parte Kumezo Kawato, 317 U.S. 69 (1942) ..................................................................... 17
Ferguson v. State of Ga., 365 U.S. 570 (1961) ..................................................................... 17
Fox v. Seal, 89 U.S. 424 (1874) ............................................................................................ 17
iv
Gardner v. Collector of Customs, 73 U.S. 499 (1867 ........................................................... 17
Glus v. Brooklyn Eastern Dist. Terminal, 359 U.S. 231 (1959)............................................ 17
Go–Bart Importing Co. v. United States, 282 U.S. 344 (1931). ........................................... 10
Hawkins v. U.S., 358 U.S. 74 (1958) ..................................................................................... 17
Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229 (1917) .............................................. 17
Holmes v. Jennison, 39 U.S. 540 (1840) ............................................................................... 17
Hunt v. Rousmanier’s Adm’rs, 21 U.S. 174 (1823)............................................................... 17
In re Hennen, 38 U.S. 230 (1839) ......................................................................................... 17
Katz v. United States, 389 U.S. 347 (1967) ........................................................................... 4
Kenicott v. Board of Sup’rs of Wayne County, 83 U.S. 452 (1872) ...................................... 17
Kirtsaeng v. John Wiley & Sons, Inc., 133 S. Ct. 1351 (2013) ............................................. 17
Klopfer v. State of N.C., 386 U.S. 213 (1967) ....................................................................... 17
Little v. Herndon, 77 U.S. 26 (1869) ..................................................................................... 17
Magniac v. Thomson, 32 U.S. 348 (1833) ............................................................................. 17
Magniac v. Thomson, 56 U.S. 281 (1853) ............................................................................. 17
Mercer’s Lessee v. Selden, 42 U.S. 37 (1843)....................................................................... 17
Michigan v. Tyler, 436 U.S. 499 (1978) ................................................................................ 10
Mincey v. Arizona, 437 U.S. 385 (1978) ............................................................................... 10
Missouri v. McNeely, 133 S. Ct. 1552 (2013) ....................................................................... 10, 11
Nations v. Jonson, 65 U.S. 195 (1860) .................................................................................. 17
Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976) ........................................................... 17
Payton v. New York, 445 U.S. 573 (1980)............................................................................. 17
Perin v. Carey, 65 U.S. 465 (1860) ....................................................................................... 17
v
Pollard v. United States, 352 U.S. 354, 361 (1957) .............................................................. 19, 22
Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429 (1895) ............................................... 17
Riddlesbarger v. Harford Ins. Co., 74 U.S. 386 (1868) ........................................................ 17
Riley v. California, 134 S. Ct. 2473 (2014) ........................................................................... 6, 7, 8
Ristaino v. Ross, 424 U.S. 589 (1976) ................................................................................... 17
Roe v. Wade, 410 U.S. 113 (1973) ........................................................................................ 17
Rutland Marble Co. v. Ripley, 77 U.S. 339 (1870) ............................................................... 17
Schick v. Reed, 419 U.S. 256 (1974) ..................................................................................... 17
Schmerber v. California, 384 U.S. 757, 758–59 (1966)........................................................ passim
Scholey v. Rew, 90 U.S. 331 (1874) ...................................................................................... 17
Skinner v. Ry. Labor Exec. Ass’n, 489 U.S. 602 (1989) ........................................................ 4, 9
Sparf v. U.S., 156 U.S. 51 (1895) .......................................................................................... 17
Stephen v. Beall, 89 U.S. 329 (1874) .................................................................................... 17
Strunk v. Untied States, 412 U.S. 434 (1973) ........................................................................ 17
Swain v. Alabama, 380 U.S. 202 (1965) ............................................................................... 17
Taylor v. Tainor, 83 U.S. 366 (1872) .................................................................................... 17
The Harriman, 76 U.S. 161 (1869) ....................................................................................... 17
The Plymouth, 70 U.S. 20 (1865) .......................................................................................... 17
Trammel v. U.S., 445 U.S. 40 (1980) .................................................................................... 17
Turner v. Department of Employment et al., 423 U.S. 44 (1975) ......................................... 17
United States v. Marion, 404 U.S. 307 (1971) ...................................................................... 20
United States v. Arnold, Schwinn & Co., 388 U.S. 365 (1967) ............................................. 17
United States v. Brown, 381 U.S. 437 (1965) ....................................................................... 17
vi
United States v. E.C. Knight Co., 156 U.S. 1 (1895) ............................................................ 17
United States v. Gundy, 7 U.S. 337 (1806) ........................................................................... 17
United States v. Lovett, 328 U.S. 303 (1946) ........................................................................ 17
United States v. Provident Trust Co., 291 U.S. 272 (1934) .................................................. 17
United States v. Robinson, 414 U.S. 218 (1973) ................................................................... 17
United States v. Santana, 427 U.S. 38, 42–43 (1976) ........................................................... 10
United States v. Thomas, 82 U.S. 337 (1872) ....................................................................... 17
United States v. Wood, 299 U.S. 123 (1936) ......................................................................... 17
Wadsworth v. Warren, 79 U.S. 307 (1870) ........................................................................... 17
Winston v. Lee, 470 U.S. 760 (1985) ..................................................................................... 9
Cases: United States Court of Appeals
Burkett v. Cunningham, 826 F.2d 1208 (3rd Cir. 1987)........................................................ 22
Burkett v. Fulcomer, 951 F.2d 1431, 1447–48 (3rd Cir. 1991) ............................................. 26
United States v. Dupree, 617 F.3d 724 (3d Cir. 2010) .......................................................... 4
United States v. Reid, 929 F.2d 990 (4th Cir. 1991) ............................................................. 5
United States v. Thomas, 167 F.3d 299 (6th Cir. 1977) ........................................................ 22
Cases: United States State Courts
State v. Allen, 197 Wis.2d 67 (1933) ..................................................................................... 20
Constitutional Provisions
U.S. Const. amend. IV ........................................................................................................... viii, 4
U.S. Const. amend. VI ........................................................................................................... viii, 4, 15
vii
Statutory Provisions
Setonia Stat. § 169A.51(a)..................................................................................................... 5
Other Authorities
Breath, MERRIAM-WEBSTER, http://www.merriam-webster.com/dictionary/breath ............. 7
THE FOURTH INSTITUTE OF THE LAWS OF ENGLAND (1797) .................................................. 18
Nancy Gertner, A Short History of American Sentencing: Too Little Law, Too
Much Law, Or Just Right, 100 JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY ................. 15, 19
viii
OPINIONS BELOW
The opinion of the Setonia Appellate Divisions is unreported and can be found
from pages four to ten in the record. The Unites States Supreme Court’s grant of
certiorari is set out on page eleven of the record.
RELEVANT CONSTITUTIONAL PROVISIONS
The Fourth Amendment to the United States Constitution guarantees:
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 to the United State Constitution provides:
In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury to 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 of obtaining
witnesses in his favor, and to have the Assistance of
Counsel for his defence.
ix
STATEMENT OF THE CASE
A.
The Fourth Amendment
On October 4, 2014, Petitioner Gary Walsh was arrested for suspicion of driving
while impaired. (R. at 1.) The officers based this arrest off of statements made by
individuals, the fact that Walsh had bloodshot eyes, and the fact that he admitted to
drinking previously. (R. at 1.) The arresting officer read Walsh the Setonia Implied
Consent Advisory. (R. at 1.) Walsh was advised that “Setonia law required him to take a
chemical test, that refusal to take the test was a crime, and that he had the right to consult
with an attorney so long as there was not an unreasonable delay in the administration of
the test.” (R. at 1–2.).
Walsh refused to take the test and was charged with driving while impaired and
test refusal. (R. at 2.)
Even though Setonia Implied Consent Advisory requires a
chemical test, no search warrant was sought by any officer prior to charging him with test
refusal. (R. at 2.)
B.
The Sixth Amendment
In 2014 Walsh was charged with bail jumping. (R. at 3). The bail jumping charges
stemmed out of his failure to appear in court on Septmber 9, 2014, for charges of family
member assault. (R. at 3.) A warrant was issued for his arrest following this absence. (R
at 3.) This arrest warrant would later lead to bail jumping charges. (Id.) As these charges
could not have been levied without an arrest, and because the arrest that led to these
charges being levied occurred on October 4, 2014, for the purposes of a speedy trial
Walsh was arrested on October 4, 2014. (R. at 3.) Walsh pled guilty on November 14,
2014. (Id.) He was moved to the Brick City Detention Center to await sentencing where
1
he would wait for well over a year before his sentence was given. (R. at 3.) In all, the
time Walsh waited for justice to run its course was 448 days—the time from arrest until
sentencing.
During Walsh’s time at the Detention Center he could have been serving a
sentence for a prior offense. (R. at 4.) That prior offense required him to receive chemical
dependency and mental health counseling as part of his sentence. (R. at 4.) Because
Walsh was at the Detention Center for these 448 days instead of serving his sentence, he
was not eligible for conditional release on the sentence for the other offense. (R. at 4.)
While at the Detention Center, Walsh experienced anxiety and depression as a result of
the delay. (R. at 4.) Additionally, the Detention Center did not have the medication for
blood pressure or stomach issues he required. (R. at 4.)
SUMMARY OF ARGUMENT
This Court should reverse the Supreme Court of Setonia’s holding that a state can
criminalize a citizen’s refusal to take a chemical test, namely, a breathalyzer test, without
a warrant. Although the there are exceptions to the warrant requirement, the type of
bodily intrusion imposed by a breath test goes beyond the scope of the search incident to
lawful arrest exception. The exigent circumstances exception should also be found
inapplicable due to the fact that alcohol gradually dissipates from the body, technological
advances have enabled warrants to be obtained much faster, and the delays involved in a
breath test are inevitable. Thus, the Court should reverse the decision of the Setonia
Supreme Court and deem any statue which criminalizes one’s refusal to take a
breathalyzer test, unconstitutional.
2
In the early days of the United States, the Speedy Trial Clause was known to
cover the trial phase of a criminal prosecution. The Court in Klopfer v. State of N.C.
identified the material from which this is found. 386 U.S. 213 (1967). The material, the
Institutes of the Laws of England, was known to have formed the basis for which the
Sixth Amendment’s Speedy Trial Clause arose. The Institutes of the Laws of England
recognize that the right to a speedy trial extends to the action of sentencing a criminal
defendant. Moreover, the founding fathers knew the Speedy Trial Clause included the
action of sentencing a criminal defendant because in colonial times, the jury would
sometimes act as the sentencer. The process for trying a criminal defendant slowly
evolved between the early 1800s through the early 1900s. Eventually, the sentencing
phase was severed from the rest of the trial.
Accepting this definition of a Speedy Trial does not disturb developed case law.
An interpretation of the Speedy Trial Clause covering both phases of a criminal
prosecution—(1) from arrest until trial and (2) from trial until sentencing—creates a
paradigm in which all cases perfectly fit. Paying close attention to these cases reveals that
the majority of them speak strictly to Speedy Trial Clause violations during the first
phase. Additionally, there is case law that applies the Speedy Trial Clause to
unreasonable delays in sentencing.
Further, the policy reasons that have been articulated by this Court also compel a
finding that the Speedy Trial Clause covers the sentencing phase of a criminal
prosecution. These reasons examine not only the defendant’s interest in a speedy
sentencing phase, they also examine the public’s interest.
3
Finally, the majority in the court below cited Strunk v. U.S., 412 U.S. 434 (1973),
arguing that a Speedy Trial Clause violation can only be remedied by dismissal of the
underlying action. But again, this is only the case if the Speedy Trial Clause violation
occurs in the first stage of a criminal prosecution. A violation of this clause in the
sentencing phase provides more options by which a Court can remedy a criminal
defendant, thereby alleviating the fear of the majority.
ARGUMENT
The Supreme Court of Setonia incorrectly reversed the lower court’s ruling in
finding that a Fourth Amendment violation occurred. The Fourth Amendment of the
United States Constitution specifically provides that “[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated….”
U.S. Const. amend. IV.
In order for a Fourth
Amendment violation to arise, a court must first determine whether a search or seizure
has occurred. United States v. Dupree, 617 F.3d 724, 730 (3d Cir. 2010). It remains
undisputed that “subjecting a person to a breathalyzer test, which generally requires the
production of alveolar or ‘deep lung’ breath for chemical analysis…should be deemed a
search.” Skinner v. Ry. Labor Exec. Ass’n, 489 U.S. 602, 616–17 (1989).
Warrantless searches are per se unreasonable. Katz v. United States, 389 U.S.
347, 357 (1967). However, because the Fourth Amendment revolves around an aura of
reasonableness, there are certain exceptions to the warrant requirement. The only such
applicable exceptions include a search incident to a lawful arrest, United States v.
Robinson, 414 U.S. 218, 224 (1973), and the exigent circumstances doctrine. In applying
these standards to the present case, the Court should reverse the Setonia Supreme Court’s
4
decision that any state imposed statute criminalizing one’s refusal to take a chemical test,
as it pertains to breath, violates the Fourth Amendment. No warrant exception applies to
save such a statute from crossing into unconstitutionality.
I. THE SETONIA SUPREME COURT’S RULING SHOULD BE REVERSED
BECAUSE NEITHER THE SEARCH INCIDENT TO ARREST’S SCOPE,
NOR THE CASE LAW SUPPORTING EXIGENT CIRCUMSTANCES TO
SEARCH WITHIN THE BODY, APPLY TO A BREATHALYZER TEST.
The Setonia Supreme Court incorrectly denied Mr. Walsh’s motion to dismiss
because a state cannot establish a statute that criminalizes a citizen’s refusal to take a
chemical breath test, as neither the search incident to lawful arrest or exigent
circumstances doctrine applies to make such a warrantless search constitutional under the
Fourth Amendment. This Court should reverse the decision of the lower court and hold
that statutes that criminalize one’s refusal to be subjected to a breathalyzer test are
unconstitutional.
A. Because a breathalyzer test requires a grave intrusion into the human
body and goes beyond the scope intended by the search incident to lawful
arrest exception, without a warrant, a chemical refusal statute which
encompasses a breath test, is an unreasonable search and violates the
Fourth Amendment.
United States v. Reid noted that unless an exception to the warrant requirement is
met, a breathalyzer test is deemed unreasonable under the Fourth Amendment 929 F.2d
990, 992 (4th Cir. 1991), however the state refusal statute at issue here, namely, Setonia
Stat. § 169A.51(a), provides that “[a]ny person who drives operates, or is in physical
control of a motor vehicle within [Setonia]…consents…to a chemical test of that person’s
blood, breath, or urine for the purpose of determining the presence of alcohol….”
Assuming that there is probable cause to arrest one under § 169A.51(b), the government
would ordinarily need a warrant for a breathalyzer test to be conducted pursuant to a
5
mandatory chemical test such as § 169A.51(a). The only way around the warrantless
search by way of a breath test in this scenario would be if a warrant exception applied.
As implied by the lower court’s reasoning, the search incident to lawful arrest is
one of the only potential exceptions that would apply to a chemical test refusal statute
which encompasses the option of a mandatory breath test. Room is made for two distinct
categories of a search incident to a lawful arrest: a search “of a person” and a search “of
the area within the immediate control of the arrestee.” Robinson, 414 U.S. 218 at 224.
Because a breathalyzer test requires an intrusion relating to the human body, and thus, to
one’s person, only this aspect of the search incident to arrest exception will be touched
on.
It is not an understatement to note that the search incident to arrest exception has
a dubious past as noted by this Court. Arizona v. Gant, 556 U.S. 332, 350 (2009). And
now, by establishing a criminal refusal statute for chemical tests which encompasses a
breathalyzer test, with alleged support that the search incident to arrest exception applies,
the state of Setonia and states that have encouraged or followed it, are not attempting to
categorize criminal refusal statutes for chemical tests into a warrant exception, but are
asking for a whole new category of lawful arrest searches. Such a creation would not
only be illogical given the push and pull of the search incident to arrest tribulations, but
with further inspection into the ideal that this case is really about intrusion within the
person as opposed to on, it would be inhumane. Moreover, as acknowledges by State v.
Bernard, the United States Supreme Court “has never implied, much less stated, that the
search-incident-to-arrest exception extends to the forcible removal of substances from
within a person’s body.” 859 N.W. 2d 762, 774 (2015).
6
In United States v. Robinson, the defendant was lawfully arrested for operating a
motor vehicle without a permit, which unequivocally allowed police to search his person.
414 U.S. at 220–22.
While conducting the search, the officer felt an object on
defendant’s breast pocket which prompted the officer to pull it out. Id. at 222–23. The
object turned out to be a cigarette package, however, the officer could tell there was
something inside but couldn’t determine what it was. Id. at 223. Upon inspection, 14
gelatin capsules of heroin were found. Id. The Court held that when there is a lawful
arrest, “a full search of the person” is an exception to the warrant requirement. Id. at 235.
While Robinson stands tall on the proposition that police may search a person
when there is a search incident to arrest situation, the intrusion is starkly different from
that done under a breathalyzer test in connection with a refusal statute. This difference is
a qualitative one in which the facts supporting a finding of probable cause sufficient to
arrest go out the window. See Riley v. California, 134 S. Ct. 2473, 2489 (2014). First
and foremost, during a pat down of an arrestee, an officer touches the exterior body of the
person, not the interior. As such, one would be hard-pressed to claim that the extraction
of a cigarette box from one’s T-shirt pocket is identical or even similar to the extraction
of an internal bodily element, such as breath.
What is more, an object found on an arrestee’s person is exactly that, an
independent and tangible source, which once removed and separated from its owner,
bears no mark of identification attaching it to the arrestee. The object, such as a cigarette
box, does not need a viable life form to exist – breath does. The full definition of breath
recognizes that connected to it is “something produced by breath or breathing.” Breath,
MERRIAM-WEBSTER,
http://www.merriam-webster.com/dictionary/breath,
7
which
establishes a connection to the human body that is not present with outside property. The
Supreme Court even recognized this distinction of property in Riley v. California, when it
confirmed that the search incident to arrest conducted of a person refers to personal
property that may be found on a person as opposed to within. 134 S. Ct. 2473, (2014).
The Chimel v. California court was the first to provide further instruction on the
search incident to arrest exception 395 U.S. 752, 762–63 (1969). The Court held that a
search incident to arrest only includes “the arrestee’s person and the area ‘within his
immediate control’….” 395 U.S. 752, 768. Chimel focused on the reasonableness of the
search and expressed that in making such a determination, both the facts and
circumstances of the particular case need to be considered in light of the Fourth
Amendment’s guiding principles. Id. at 765. To note the court’s analysis of history, the
Fourth Amendment is in fact meant to protect citizens against those evil intrusions which
our history has indicated may easily occur without a warrant. See id.
Thus, in applying this rationale to the criminal refusal statute at hand, the Court
must not forget to consider not only the circumstances of this particular case in which Mr.
Walsh was punished for failing to adhere to the Setonia refusal statute, but also the bigger
picture of what the imposition of a criminal refusal statute, as it relates to a breathalyzer
test, will mean for the citizens of the states. The main concern being that a go-ahead to
search within a person’s body will be extended to deeper roots and vessels that contain
more important information than just the blood alcohol content running through one’s
veins. With no strict guidance of what “on a person” means, the courts are left to their
own interpretations. Their intrusions that go beyond the scope of the search incident to
arrest exception must be hindered.
8
Robinson is in fact the Court’s only decision in which the holding of Chimel is
extended to a search of objects found “on an arrestee’s person.” Riley, 134 S. Ct. at 2488.
There have been several courts which have gone on to apply this principle to additional
objects found on a person. Id. To wit, a search of the person which resulted in the
finding of an address book and wallet were constitutional in United States v. Carrion, 809
F.2d 1120, 1123, 1128 (5th Cir. 1987), as was a purse in United States v. Lee, 501 F.2d
890, 892 (D.C. 1974). However, again, the government’s claim that a search incident to
arrest allows for a full search of the arrestee’s person extends solely to those items found
on a person. The issue at heart here deals with the government’s unlawful ability to
search within a person, not on.
Such conduct, if found to be included within the
definition surrounding the search of a person, would mark a severe increase in the
government’s authority as it relates to lawful arrest, a power the search incident to a
lawful arrest exception likely never intended to give. See Boyd v. United States, 116 U.S.
616, 625 (1886). Subsequent cases have never limited the search incident to lawful arrest
exception as it relates to the “arrestee’s body.” Bernard, 859 N.W. 2d at 769 (2015).
The Court now has the opportunity to narrow the scope of what may be searched on a
person’s body, and it should hold that the intrusion required for breathalyzer tests, absent
severely impractical circumstances, is an intrusion into a privacy interest that the search
incident to arrest exception does not have the power to violate.
Furthermore, many cases highlight the fact that there are two underlying
principles to the search incident to arrest exception, which revolve around the protection
of arresting officer against weapons that may be used to escape or resist arrest, and
preventing the destruction of evidence that the arrestee might conceal or destroy and
9
which is related to the crime. Agnello v. United States, 269 U.S. 20, 30 (1925); Gant, 556
U.S. at 339 (2009). However, neither of these rationales are ultimately considered to
make a final determinations and even if they were, they do not apply to the context of a
breathalyzer test.
To begin, the citizen who has been arrested with probable cause for driving while
intoxicated, and who is forced to consent to a breathalyzer test under a refusal statue, has
no means by which he can reach into his body and accelerate the rate at which the blood
alcohol content in his system will dissipate. It is physically impossible. The only delay –
that of obtaining a warrant – is not in reality a delay, but an inconvenience for the
arresting officer. Moreover, it is extremely unlikely that the arrestee would be hiding
weapons in his mouth. And even if he did, it is likely that given the size of the weapon, it
would not pose any severe threat to the officer, at least not any that would justify the
bodily invasion involved in a breath test.
This Court has even expressed that an invasion delving into the physical body’s
integrity necessarily implicates the “most personal and deep-rooted expectations of
privacy.” Winston v. Lee, 470 U.S. 753, 760 (1985); see also Skinner, 489 U.S. at 616.
With that in mind, this court should reverse the decision of the lower court and hold that a
chemical refusal statute, which encompasses a breath test, is an unreasonable search that
violates the Fourth Amendment.
10
B. Because a per se exception for blood tests in drunk driving scenarios has
failed, the same considerations support a rejection of a per se exigent
exception for breathalyzer tests, including the gradual dissipation of
blood alcohol content from the body, the possibility that a warrant may
be obtained much faster, and inevitable delays in the chemical test
process.
The only other warrant exception that could potentially allow officers the ability
to conduct a breathalyzer test without a warrant under a refusal statute is the exigent
circumstances doctrine. See Cupp v. Murphy, 412 U.S. 291, 296 (1973). The underling
rationale for this doctrine revolves around the idea that the exigencies of a particular
situation “make the needs of law enforcement so compelling that a warrantless search is
objectively reasonable,” such that a warrantless search does not violate the Fourth
Amendment. Mincey v. Arizona, 437 U.S. 385, 393–94 (1978). There are several
instances in which a sufficient exigency may arise that makes up for the absence of a
warrant. Michigan v. Fisher, 558 U.S. 45, 47–48 (2009) (needing to enter home to assist
the occupant found reasonable); Michigan v. Tyler, 436 U.S. 499, 509–10 (1978); United
States v. Santana, 427 U.S. 38, 42–43 (1976) (a “hot pursuit” of a fleeing suspect deemed
an exigent circumstance).
What these circumstances have in common that differ
qualitatively from drunk driving cases is that there existed a “compelling need” for
immediate action in that there was no time to obtain a warrant. Tyler, 436 U.S. at 509.
In order to come to the conclusion that the government officer faced an
emergency requiring action without a warrant, a court needs to look to the totality of the
circumstances. McNeely, 133 S. Ct. 1559. Stemming from this and in an attempt to find
justification supported by reasonableness, the conclusion of whether an exigent
circumstance existed is determined on each case’s “own facts and circumstances.” See
Go–Bart Importing Co. v. United States, 282 U.S. 344, 357 (1931).
11
In Missouri v. McNeely, there was no applicable chemical test refusal statute,
however, after the defendant was stopped for speeding and taken to a nearby hospital for
blood testing without a warrant, despite the defendant’s refusal to consent to the blood
test, the officer told the lab technician to conduct the test anyhow and a forced draw was
administered. 133 S. Ct. 1552, 1557 (2013). The Court held that as it pertained to drunkdriving investigations, the natural dissipation of alcohol in the bloodstream does not
constitute an exigency in every case sufficient to justify conducting a blood test without a
warrant. Id. at 1568.
The Court’s analysis in McNeely considered the fact that the state was not simply
asking for the exigent circumstances to apply, but was asking for a “per se rule for blood
testing in drunk-driving cases.” Id. at 1560. The court acknowledged that although it is
true that the body’s natural process, as time goes on, enables the alcohol level in one’s
blood to dissipate, it does so gradually, a significant delay in testing would affect the
results of the blood test. Without realizing it, McNeely’s commentary takes credence
away from the notion that the gradual dissipation of alcohol in the bloodstream serves as
an emergency of the most significant kind.
Likewise, while blood and breath are
different ingredients of the body and their extraction slightly different, the same
substance is at issue here – alcohol – and its speed of dissipation and thus, its resulting
inculpating numbers taken from blood or breath, remains the same.
Furthermore, the court noted that while some circumstances may make the
attainment of a warrant difficult, the sprout of technological advances in the last seven
decades since Schmerber, now allow much faster methods to secure a warrant. Id. at
1561–62.
This same detail holds true for warrants sought for breath refusal tests;
12
technology does not discriminate. For instance, police in many states are now able to
apply for a warrant via telephone, radio, email, and even video conferencing. Id. at1562.
Therefore, the concern that time is of the essence in drunk driving cases no longer bears
as much truth as it once dead. In turn, the underpinnings of the exigent circumstances
exception no longer stick as well with drunk driving situations, with blood or breath tests,
assuming that the situation is not one of the rare circumstances in which a warrant cannot
potentially be obtained.
Additionally, McNeely added that blood testing contrasts from other cases in
which destruction of evidence is at stake, namely, in that a “‘now or never’” situation has
presented itself. Id. at 1561 (quoting Roaden v. Kentucky, 413 U.S. 496, 505 (1973).
One such circumstance includes a moment in which a suspect has control over evidence
that can be easily disposed. Cupp, 412 U.S. at 296. Similarly, because alcohol dissipates
from one’s bloodstream gradually, proof of its incriminating nature also slowly decreases
in one’s breath sample; the suspect has no way of destroying its presence within his own
body, nor can he throw it to the side or down a drain during an attempt to flee arrest.
It is even noted that in the context of a blood test, time will naturally go by due to
the suspect needing to be transported to a medical facility in order for a reasonable and
safe withdrawal to take place. 133 S. Ct. 1552 at 1561. Depending on the length of this
transport, the same reasoning can apply to an attempt to take a breath test in that the
arrestee may be using a plethora of tactics to delay a breath sample from taking place.
And just as an expert may be able to testify as to what the blood alcohol content likely
was at the time of the arrest, rather than when the blood sample was actually obtained,
133 S. Ct. at 1563, an expert may do the same for a breath test.
13
In Schmerber v. California, a police officer believed that the defendant had been
involved in an accident while intoxicated, and while the defendant was being treated at a
hospital, he refused to consent to a blood test to test his blood alcohol content. 384 U.S.
757, 758–59 (1966). Despite defendant’s refusal, the officer ordered a blood test to be
administered and the defendant argued that the blood test was a product of an unlawful
search. Id. at 758–59, 766. The Court reasoned that the officer may have felt that a true
emergency presented itself in that the percentage of alcohol in defendant’s system would
begin to dissipate shortly after drinking, thereby destroying crucial evidence. Id. at 770.
The fact that valuable time was spent in transporting the defendant to a hospital
was used to show that there was insufficient time to seek a magistrate’s approval for a
warrant. Id. at 770–71. However, as noted supra, today’s modern technology by way of
cellular phones and email, and the evolution of law, would now allow an officer to
attempt to secure a warrant during transport. The same reasoning can be applied in
seeking a warrant to conduct a chemical test by way of a breathalyzer. And furthermore,
in the context of a drunk driving case, there would be no delay, such as needing to go to a
medical facility, in order to obtain a warrant to conduct a breath test. Reason being that
the device used to facilitate a breath test is movable and can be done on site, be it on the
side of the road, in a parking lot, or at a police station. And unlike a blood test, which
requires medical personnel, a breathalyzer device, such as that used by Setonia is less
risky and subjects no pain to the arrestee because it requires only one exhalation. This
further supports the realization that time is not wasted, rather, if anything, there is time to
spare.
14
The Court also added that chemical tests themselves, such as the blood test
administered there, are reasonable as they are not only casual occurrences in today’s day
and age with physical examinations, but the quantity of blood removed is minimal, and
the procedure involves no risk or pain. Id. at 771. The government will not squander the
chance to apply the same reasoning to why a breathalyzer test is reasonable, however, the
logic used by the Court in Schmerber was unsound and faulty at best in the context of a
criminal refusal statute. A periodic physical examination is undergone voluntarily, not by
force, and as discussed within the search incident to arrest analysis above, any extraction
is an intrusion, no matter how minimal. And, while a breathalyzer test may be physically
painless, this is irrelevant when the intrusion into the body unreasonably violates the
privacy interest that the Fourth Amendment unquestionably protects.
As the final blow against the Fourth Amendment, the Schmerber court maintained
that performance of the blood test was also reasonable because it was done by a physician
in a hospital environment, 384 U.S. at 771–72 but it does not consider the confusion,
fright, and undeniable embarrassment of a chemical test being administered on the side of
the road, as the Setonia refusal statute, and every criminal refusal statute like it, imposes
on its victims who are virtually coerced into consenting to a breath test to avoid an
additional crime.
There is something gravely wrong with the Court’s emphasis that such an
intrusion is reasonable under the Fourth Amendment “on the facts of” [the Schmerber]
case, and the facts of that case alone. The Court’s subsequent emphasis on the “integrity
of a person poses as an obvious inconsistency with its further emphasis that “minor
intrusions” conducted in “stringently limited conditions” are constitutional. There is
15
nothing minor about a physical intrusion into the body, be it for blood or breath, and there
is certainly nothing stringent about such extraction when conducted on the side of the
road – without medical personnel, in the absence of safe conditions, and without a
warrant. The holding of Schmerber hangs on by a thread and its attachment to required
breath test scenarios shows that its fibers make up a different cloth.
As a result, the government should not be allowed to trick the court into the belief
that blood tests are drastically different from breath tests. A physical intrusion into the
body is an intrusion nonetheless, and differentiating that invasion with minor details is
unreasonable in itself.
II.
WHEN THE CONSTITUTION WAS DRAFTED THE WORD TRIAL
INCLUDED THE ACTION OF SENTENCING.
The Sixth Amendment of the United States Constitution states that:
In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury to 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 of obtaining
witnesses in his favor, and to have the Assistance of
Counsel for his defence.
U.S. Const. amend. VI. Despite this Court’s guidance in Klopfer v. State of N.C., 386
U.S. 213 (1967), the majority in the case below did not consult the first source to describe
what the phrase speedy trial meant. Had they done so, they would have discovered that
there is reliable authority to which the founding fathers looked when drafting the
Constitution and the Bill of Rights. Further, the authority is one that this Court is very
familiar with, having relied on it for the Court’s opinion in numerous instances. Finally,
16
they would have found that the authority knew a trial to include the action of sentencing a
criminal defendant.
To be clear, there is (1) what amounts to precedential authority from which the
founding fathers were educated and looked to when drafting the Constitution and the Bill
of Rights, (2) authority which this Court has looked to for guidance in some of its most
recognizable cases, and (3) which defines trial as including the action of sentencing a
criminal defendant. But the majority chose not to consider it.
Additionally, U.S. District Judge Gertner has noted that in Colonial times juries
acted as sentencers. Nancy Gertner, A Short History of American Sentencing: Too Little
Law, Too Much Law, Or Just Right, 100 JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY
692 (2010). The sentencing phase slowly was severed from the trial through the early 20th
century. Id. at 223–26.
Because the founding fathers knew the phrase speedy trial to cover the action of
sentencing a criminal defendant and because this Country’s own history shows that in
practice, the phrase speedy trial covered the action of sentencing a defendant, this Court
must find that the Speedy Trial Clause applies to the sentencing phase of a criminal
prosecution.
A. The founding fathers looked to Coke on Littleton for guidance when
drafting the Bill of Rights.
In Klopfer this Court recognized that the Speedy Trial Clause came from the
Institutes on the Laws of England, also known as Coke on Littleton. 386 U.S. at 223–26.
There, the Court started by explaining that the first articulation of a speedy trial comes
from the Magna Carta in 1215. Id. at 223. As explained in Coke on Littleton, this right
was adopted by English common law. Id. at 224. The Court then recognized that Coke on
17
Littleton was read and studied by virtually every student of law in the American
Colonies. Id. at 225.
Thomas Jefferson wrote that around the same time the Constitution and Bill of
Rights were signed Coke on Littleton “was the universal elementary book of law
students.” Id. Indeed, George Mason used phraseology similar to that found in Coke on
Littleton when drafting the Virginia Declaration of Rights in 1776. Id. James Madison,
the author of the Bill of Rights, is known to be strongly influenced by the Virginia
Declaration of Rights. BILL
OF
RIGHTS, http://www.billofrightsinstitute.org/founding-
documents/bill-of-rights/ (last visited Mar. 3, 2016). In total, seven States guaranteed the
right to a speedy trial in their Constitutions. Id. n. 21. Finally, former Chief Justice
Rutledge acknowledge that Coke on Littleton seemed “to be almost the foundation of our
law.” Id. at 225.
Because the founding fathers themselves relied on Coke on Littleton to guide
them and to develop U.S. law, this Court must give this authority near precedential
weight when determining if the sentencing phase of a criminal prosecution is covered by
the Speedy Trial Clause.
B. Coke on Littleton has been used to clarify the Constitution and to
settle cases in this Court over fifty seven times.
Coke on Littleton is not a foreign source to this Court. This Court has looked to
Coke on Littleton for guidance on what was traditionally meant in common law
numerous times. The most notable cases are Roe v. Wade, 410 U.S. 113 (1973), and U.S.
18
v. E.C. Knight Co., 156 U.S. 1 (1895). Moreover, Coke on Littleton has been cited at
least 57 other times by this Court.1
In Roe v. Wade, the Court referenced Coke on Littleton to define what abortion
meant. 410. U.S. 113, 134. In Roe the Court tied this Country’s common law to the
common law that had evolved in England. Id. This is common practice for this Court
when looking for guidance on common law. Indeed, in U.S. v. E.C. Knight, the Court
extensively examined Coke on Littleton. There, the Court was seeking guidance for what
constituted a monopoly. 156 U.S. at 10.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
1
See, e.g., U.S. v. Wood, 299 U.S. 123 (1936); Dr. Miles Medical Co. v. John D. Park &
Sons Co., 220 U.S. 373 (1911); Payton v. New York, 445 U.S. 573 (1980); Hawkins v.
U.S., 358 U.S. 74 (1958); Carmichael v. Southern Coal & Coke Co., 301 U.S. 495
(1937); U.S. v. Gundy, 7 U.S. 337 (1806); Kirtsaeng v. John Wiley & Sons, Inc., 133
S.Ct. 1351 (2013); U.S. v. Lovett, 328 U.S. 303 (1946); Magniac v. Thomson, 56 U.S.
281 (1853); Turner v. Department of Employment et al., 423 U.S. 44 (1975); Stephen v.
Beall 89 U.S. 329 (1874); Scholey v. Rew, 90 U.S. 331 (1874); U.S. v. Provident Trust
Co., 291 U.S. 272 (1934); Ex parte Kumezo Kawato, 317 U.S. 69 (1942); Holmes v.
Jennison, 39 U.S. 540 (1840); Broome v. U.S. 56 U.S. 143 (1853); Magniac v. Thomson
32 U.S. 348 (1833); Cassell v. Carroll 24 U.S. 134 (1826); Hitchman Coal & Coke Co. v.
Mitchell, 245 U.S. 229 (1917); Trammel v. U.S. 445 U.S. 40 (1980); Gardner v.
Collector of Customs, 73 U.S. 499 (1867); Glus v. Brooklyn Eastern Dist. Terminal, 359
U.S. 231 (1959); Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429 (1895); Ferguson
v. State of Ga., 365 U.S. 570 (1961); U.S. v. Thomas, 82 U.S. 337 (1872); Sparf v. U.S.,
156 U.S. 51 (1895); Swain v. Alabama, 380 U.S. 202 (1965); U.S. v. Arnold, Schwinn &
Co., 388 U.S. 365 (1967); The Plymouth, 70 U.S. 20 (1865); Davis v. Mason, 26 U.S.
503 (1828); Branson v. Wirth, 84 U.S. 32 (1872); Dickerson v. Colgrove, 100 U.S. 578
(1879); Cheang-Kee v. U.S., 70 U.S. 320, (1865); The Harriman, 76 U.S. 161 (1869);
Ristaino v. Ross, 424 U.S. 589 (1976); Riddlesbarger v. Harford Ins. Co., 74 U.S. 386
(1868); Little v. Herndon, 77 U.S. 26 (1869); Calvert v. Bradley, 57 U.S. 580 (1853);
Wadsworth v. Warren, 79 U.S. 307 (1870); Mercer’s Lessee v. Selden, 42 U.S. 37
(1843); In re Hennen, 38 U.S. 230 (1839); Schick v. Reed, 419 U.S. 256 (1974); Taylor
v. Tainor, 83 U.S. 366 (1872); Fox v. Seal, 89 U.S. 424 (1874); Nations v. Jonson, 65
U.S. 195 (1860); U.S. v. Brown, 381 U.S. 437 (1965); Perin v. Carey, 65 U.S. 465
(1860); Rutland Marble Co. v. Ripley, 77 U.S. 339 (1870); Davis v. Gray, 83 U.S. 203
(1872); Hunt v. Rousmanier’s Adm’rs, 21 U.S. 174 (1823); Continental T.V., Inc. v. GTE
Sylvania Inc., 433 U.S. 36 (1977); Cohens v. State of Virginia, 19 U.S. 264 (1821);
Kenicott v. Board of Sup’rs of Wayne County, 83 U.S. 452 (1872); Gardner v. Collins,
27 U.S. 58 (1829); Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976); Bank of U.S. v.
Dandridge, 25 U.S. 64 (1827); Batson v. Kentucky, 476 U.S. 79 (1986).
19
Time and again this Court has looked to Coke on Littleton for guidance to the
common law. This strong authority must therefore be given heavy weight by this Court
when determining whether the Speedy Trial Clause extends to the sentencing phase of a
criminal prosecution.
C. Speedy trial arose from Coke on Littleton where it stated that speedy
justice means until the end of a criminal case.
The Klopfer Court stated that during time in England when Coke on Littleton was
written, justices of gaol delivery and justices of oyer and terminer would visit the
countryside three times a year. Id. 223–24. In Coke on Littleton, it states that justices of
gaol delivery and justices of oyer and terminer would hear a criminal prosecution and
decide the case including sentencing. THE FOURTH INSTITUTES OF THE LAWS OF ENGLAND
(1797)
available
at
http://www.mindserpent.com/American_History/books/Coke/1797_Coke_Institutes_part
_4.pdf. Further, in the course of carrying out these trials and handing down the sentences
the justices were not to “deny, or delay justice and right.” Id. 56. There, justice meant
“the end” of the prosecution. Id.
The fact that Coke on Littleton defined justice as meaning until the end of the
criminal prosecution combined with the explicit statement that justice shall not be denied
can only mean one possible thing. In common law the right to a speedy trial the action of
sentencing a criminal defendant. But even if one were to dispute that this is what the
passage meant, in practice the right to a speedy trial had to include the action of
sentencing a criminal defendant. This is because justices of oyer and terminer as well as
justices of gaol delivery tried and sentenced criminal defendants before them THE
FOURTH INSTITUTE OF THE LAWS OF ENGLAND 163–5, 168 (1797).
20
Because Coke on Littleton recognized that a speedy trial included the action of
sentencing a criminal defendant, because criminal prosecutions in colonial times included
sentences being rendered as a part of the trial, and because the founding fathers drew
their legal understanding from Coke on Littleton as well as experiencing and surely
participating in those early colonial prosecutions, this Court must overturn the lower
court’s ruling and find that the Speedy Trial Clause extends to the sentencing portion of a
criminal prosecution.
III.
CASE LAW IS CONSISTENT WITH THE DEFINITION OF WHAT
THE WORD TRIAL MEANT AT THE TIME THE CONSTITUTION
WAS DRAFTED.
Despite this Court’s stance in Pollard v. United States, 352 U.S. 354, 361 (1957),
where the Court stated that it would “assume arguendo that sentence is part of the trial
for purposes of the Sixth Amendment,” the majority from which this case is appealed
talked its way into the opposite conclusion with flawed logic. While the logic was flawed,
the majority correctly pointed out that the way to determine if the word trial includes the
sentencing phase of a criminal prosecution is to look to the definition of the word trial.
The majority applied a 21st century definition to a word drafted in the 18th century. There,
the majority looked to the 2014 edition of Blacks Law Dictionary to define the word trial.
But the founding fathers did not have the 2014 edition of Blacks Law Dictionary when
they wrote the Bill of Rights, and what they knew as a trial was far different from it is
today. Thus, the majority is attempting to redefine what the Speedy Trial Clause covers.
In doing so, the majority impermissibly strips Constitutional rights from its’ citizens by
removing the sentencing phase from the Speedy Trial Clause when that phase was
previously recognized by the clause.
21
In colonial times sentencing was done at the time of trial. Nancy Gertner, A Short
History of American Sentencing: Too Little Law, Too Much Law, Or Just Right, 100
JOURNAL
OF
CRIMINAL LAW
AND
CRIMINOLOGY 692 (2010). Often a jury would be the
ones to sentence the criminal defendant. Id. From the colonial times until the early 20th
century, trials slowly evolved into the process that we recognize today. Id. 692–95.
Through that time period the definition of what trial meant for Sixth Amendment
purposes was never updated to reflect the severance of the sentencing phase from the
trial.
Once the sentencing phase was severed from the trial, the Speedy Trial Clause
could be said to cover two distinct phases. The first phase, arrest until trial, covers the
instances that most previous Speedy Trial cases arose under. And the second phase, from
trial until sentencing, which this Court has a few cases which have arisen under. Further,
“no federal court has held that sentencing is not within the protective ambit of the Sixth
Amendment right to a speedy trial.” State v. Allen, 197 Wis.2d 67, 72 (1993) (internal
citation omitted; emphasis in original). Existing Federal case law falls into a very clear
paradigm when applying the correct definition—one where trial includes the sentencing
phase.
A. Previous cases before this Court inquiring as to the Sixth Amendment
only involved the time between arrest and trial.
Previous Supreme Court cases where a party asserts a violation of the Sixth
Amendment’s Speedy Trial Clause commonly assert an unreasonable delay in the first
phase, before trial. U.S. v. Marion, 404 U.S. 307 (1971); Barker v. Wingo, 407 U.S. 514
(1972); Klopfer v. State of N.C., 386 U.S. 213 (1967).
22
For instance, in Marion, the defendants claimed that “the Government had known
of the crimes with which they were charged, the circumstances of the crimes, and [their]
identities for over there years before they were indicted.” 404 U.S. at 307. There, the
defendants argued that they were alleged to have committed fraud in 1967 and that an
indictment in 1970 violated the Speedy Trial Clause. Id. at 310. Thus, the Court made
clear it was only examining the when the first phase of a criminal proceeding began,
stating “the rule is clearly limited to post-arrest situations.” Id. at 319. There was no need
to determine what the Speedy Trial Clause encompassed and nor did the Court consider
that question. To the extent that the Marion Court did use the word “trial”, it referred to
the definition of the word trial as explained by the Klopfer Court. The Klopfer Court
relied on material that defines trial as including the action of sentencing. See supra Part I.
In Barker, this Court held that a more than five-year delay between arrest and trial
was not a violation of the Speedy Trial Clause. 407 U.S. 514. There the Court articulated
the balancing test that is to be used when a violation of the Speedy Trial Clause is
alleged. Id. But creating a test for determining if the Speedy Trial Clause has been
violated in the first phase of a criminal prosecution is not the same as holding that the
Speedy Trial Clause only covers up until trial. And this makes sense because the public
interest and the defendant’s interest in a speedy resolution up to trial are different from
their interests post trial but before sentencing. To be sure, there is much crossover, but
there are also some new considerations post conviction. See Part III infra.
In Klopfer this Court found a North Carolina criminal procedure unconstitutional
where government prosecutors were allowed to “indefinitely postpone prosecution an
indictment.” 386 U.S. 213. The Klopfer Court ruled that while the defendant was still in
23
the first phase of a criminal prosecution the limitation placed on his liberty was not
alleviated simply by the suspension of the prosecution. Id. at 221. Further, the Klopfer
Court based its reasoning on materials that the founding fathers studied from in the time
that the Constitution and Bill of Rights were drafted. Id. at 223–26. Those same materials
make it abundantly clear that the founding fathers intended the Speedy Trial Clause to
cover the action of sentencing a criminal defendant. Supra Part I.
The majority in the case below uses the language from these cases to support the
proposition that the Speedy Trial Clause only covers the first phase of a criminal
prosecution. But again, the majority does not look at the sources from which that
language arises. Further examination of those materials reveals that the Speedy Trial
Clause extends to the sentencing phase of a criminal prosecution.
B. Several Circuit Courts have recognized that a delay in sentencing may
violate the Speedy Trial Clause.
The idea that the second phase is still covered under the Speedy Trial Clause
despite the severance from the trial is not uncommon in federal courts. Both the Third
and Sixth Circuits have recognized that a delay in a defendant’s sentencing may be a
violation of the Speedy Trial Clause. Burkett v. Cunningham, 826 F.2d 1208 (3rd Cir.
1987); United States v. Thomas, 167 F.3d 299 (6th Cir. 1977). These Courts based their
reasoning off of the Pollard Court “assum[ing] arguendo that sentence is part of the trial
for purposes of the Sixth Amendment.” 352 U.S. at 361.
In Burkett, a defendant waited over five years between conviction and sentencing.
826 F.2d 1210. The federal district court found a violation of the Speedy Trial Clause and
the circuit court affirmed citing to its own precedent of finding a delay in sentencing
could violate the Speedy Trial Clause. Id. at 1220 (nine internal citations omitted). The
24
cases which the Burkett Court relied upon based their reasoning on Pollard. Concluding,
the Burkett Court stated that “the Speedy Trial Clause of the Sixth Amendment applies . .
. up through the sentencing phase of prosecution, in other words, until one final preappellate determination has been made.” Id.
Despite these cases relying on this Court’s precedent, and the absence of case law
stating the Speedy Trial Clause does not extend to the sentencing phase of a criminal
prosecution, the majority below finds the 2014 edition of Black’s Law Dictionary more
compelling authority.
IV.
THE MORDERN POLICY REASONS SUPPORTING A SPEEDY
TRIAL ALSO SUPPORT A SPEEDY SENTENCE BECAUSE A
DEFENDANT AND THE PUBLIC WILL BE NEGATIVELY
AFFECTED WITHOUT SUCH A FINDING.
Strong policy reasons reinforce the idea that the Speedy Trial Clause extends to
the sentencing phase of a criminal prosecution. As this Court stated in Barker, “[i]n
addition to the general concern that all accused persons be treated according to decent
and fair procedures, there is a societal interest in providing a speedy trial which exists
separate from, and at times in opposition to, the interests of the accused.” 407 U.S. at
519. Clearly there are two strong policy reasons behind why the Speedy Trial Clause is so
important. One set of policy reasons relates to the defendants perspective while the other
relates to the publics perspective.
To be sure, not all of the policy reasons discussed in Barker apply to a postconviction defendant who is awaiting sentencing. For instance, the threat of a person
committing other crimes while out on bond awaiting trial cannot apply to a defendant
who has already been convicted. Id.
25
A. A defendants’ interest in a speedy sentence supports a finding that the
Speedy Trial Clause applies to the sentencing phase of a criminal
prosecution.
Defendants have a strong interest in a speedy sentencing phase. Many criminal
defendants are on probation when they are convicted of a crime. These defendants have
an interest in getting their lives back together as well as paying their debt to society.
Many more criminal defendants are not on probation, have not been convicted of a prior
crime, and simply made a bad decision. These defendants have an interest in facing the
consequences of their actions and getting back to the life they had led previously.
Like Walsh, many criminal defendants are required to complete their courtordered treatment programs. This policy reason is two fold. First, the defendants have an
interest in rehabilitating themselves and getting the treatment they need. This is closely
tied with the societal interest in a criminal defendant being rehabilitated. Second, a
criminal defendant has an interest in serving the time that is required by him under a
previous sentence. But like Wlash’s experience, many local jails do not have the
resources that the criminal defendants need to be rehabilitated. Taking Walsh as an
example, his charges all stem from the consumption of alcohol. Had he been transferred
to the Setonia State Prison he would have been able to receive chemical dependency and
mental health counseling which was required as part of his felony member assault
sentencing. At Brick City Detention Center no such services are available. Furthermore, a
delay in sentencing can only hinder a criminal defendant’s interest in being able to serve
out a different sentence as they await their fate.
26
Additionally, criminal defendants are unable to serve time relating to a previous
sentence, and may miss out on opportunities for conditional release or parole because
their sentence is effectively tolled while they await the sentence on the current charges.
Like Walsh, many criminal defendants can obtain conditional release or parole after
serving a certain portion of their sentence. But like Walsh, when criminal defendants are
being held in a different prison awaiting sentencing, the time they are currently serving is
tolled and they are unable to qualify for either conditional release or for parole.
There are strong policy reasons supporting a criminal defendants interest in being
able to begin serving his or her sentence as quickly as possible. These reasons support
Coke on Littleton’s authority that a right to a Speedy Trial extended to the action of
sentencing a criminal defendant. Thus, the Court should find that the Speedy Trial Clause
applies to the sentencing phase of a criminal prosecution.
B. The public’s interest in a speedy sentence supports a finding tha the
Speedy Trial Cluase applies to the sentencing phase of a criminal
prosecution.
In Barker the Court expressed numerous policy reasons that support the public’s
interest in criminal defendants having a speedy trial. Clogging the Court system,
indirectly making it more likely other criminal defendants are awaiting trial have an
opportunity to commit further crimes, and the time spent in jail may have a detrimental
effect on rehabilitation are all societal interests which are not alleviated once a verdict is
handed down. Id. at 520. These policy reasons all apply to the need for a speedy
sentencing phase as well.
There is a strong societal interest having the Speedy Trial Clause extend to the
sentencing phase of a criminal prosecution because having the case open on the Court’s
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docket will only clog its’ caseload. Keeping a case on a Court’s docket requires that
Court to keep up with all that is occurring in the meantime between verdict and
sentencing. This takes judicial resources away from other cases, other litigants, and other
individuals.
The strain on judicial resources impacts other criminal defendants as well. These
individuals may find themselves out on bond while they wait for another criminal
defendant’s case to be closed and removed from the Court’s docket. While this isn’t the
same as the criminal defendant being out on bail like in Barker, the society still has an
interest no criminal defendants who have been charged with heinous crimes being out on
bail.
In addition, society has an interest in the rehabilitation of criminal defendants. But
similar to Walsh in this case, when a criminal defendant is awaiting sentencing they are
generally confined to a local jail. “This contributes to overcrowding and generally
deplorable state of those institutions.” Id. Prolonged exposure to such an environment
“has a destructive effect on human character and makes the rehabilitation of the
individual offender much more difficult.” Id. In addition, individuals who have been
convicted of heinous crimes who are awaiting sentencing in local jails are likely to have
an even more negative effect on other accused individuals in the same jail. This is
because being a convicted murderer, rapist, or child abuser is very different from being
accused of those same crimes. Other individuals in a local jail may not be impacted in the
same way by an individual who is merely accused of crimes as opposed to a criminal
defendant who has been convicted of those same crimes.
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Because there is already strong authority recognizing that the sentencing phase of
a criminal prosecution is covered by the Speedy Trial Clause, and because there are
strong societal interests in support of that authority, this Court should find the Speedy
Trial Clause does extend to the sentencing phase of a criminal prosecution.
V.
A GUILTY VERDICT WOULD NOT BE DISMISSED IF A COURT
FOUND A DELAY IN SENTENCING VIOLATED THE SPEEDY
TRIAL CLAUSE.
The majority from the court below contends that the only possible remedy for a
violation of the Speedy Trial Clause is to dismiss the case. To support this, the majority
cites Strunk v. Untied States, 412 U.S. 434 (1973). But Strunk only applies to alleged
violations of the Speedy Trial Clause that occur before a trial. Id. at 439 (emphasis
added). And it would makes sense that before trial the only remedy is to dismiss the
charges because that is the only possible remedy a Court is capable of granting a
defendant at that time. But in a post-trial scenario where a sentence has already been
given, other remedies are available. Burkett v. Fulcomer, 951 F.2d 1431, 1447–48 (3rd
Cir. 1991). In Burkett the Court reduced the criminal defendant’s sentence “by the
amount of time he spent in various county facilities after conviction and before
sentencing.” Id. 1447.
Put simply, while it is true that the only remedy for a violation of the Speedy Trial
Clause before a trial is to dismiss the charges, there are more remedies for a violation of
the Speedy Trial Clause during the sentencing phase of a criminal prosecution. As such, a
violation of the Speedy Trial Clause during the sentencing phase does not necessarily
require the sever remedy of dismissal of the charges against the criminal defendant.
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CONCLUSION
For the reasons set forth above, the judgment of the Setonia Supreme Court
should be reversed and the case should be remanded for further proceedings.
Dated: March 3, 2016
Respectfully submitted,
___________________
Team 39
Counsel for Petitioner
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