i

No. 2014-01

IN THE

Supreme Court of the United States

SPRING TERM, 2014

CITY OF NEW OLYMPIA,

Petitioner, V.

BUD SOMERVILLE, Respondent.

ON WRIT OF CERTIORARI FROM THE SUPREME COURT OF WIGMORE

BRIEF FOR THE PETITIONER

Northwestern University School of Law

Julius H. Miner Moot Court Competition

Attorneys for the Petitioner:

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ii

QUESTIONS PRESENTED

I. Whether a city law that only regulates firearm possession in public places for one

season each year violates the Second Amendment.

II. Whether the exclusionary rule applies when a police officer makes the unplanned

decision to improperly stop a defendant, but thereafter follows proper protocol,

coincidentally discovers an outstanding arrest warrant, and then finds incriminating

evidence after a legal search incident to arrest.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................................................................................ ii TABLE OF AUTHORITIES ...................................................................................................... iv

OPINIONS BELOW ..................................................................................................................... 1

STATEMENT OF THE CASE .................................................................................................... 1

SUMMARY OF THE ARGUMENT .......................................................................................... 3

ARGUMENT ................................................................................................................................. 4 I. NEW OLYMPIA’S SEASONAL FIREARM ORDINANCE IS CONSTITUTIONAL BECAUSE ITS SEASONAL REGULATIONS ARE LESS RESTRICTIVE THAN TRADITIONALLY ACCEPTABLE REGULATIONS. ...................................................... 4

A. To affirm the Heller and McDonald Courts’ rejection of interest balancing, this Court should employ a historical and textual standard of review that focuses on the scope of traditionally acceptable firearm regulations. ........................................................................... 5 B. The seasonal firearm regulation does not frustrate the express purpose of the Second Amendment and is less restrictive than traditionally accepted firearm restrictions. .............. 6 1. New Olympia’s regulation does not frustrate the stated purpose of the Second Amendment. ............................................................................................................................ 6 2. Traditional laws on firearms in public places imposed far greater restrictions on the right to self-defense than the New Olympia seasonal regulation. .......................................... 7

II. BOTH THE BROWN FACTOR ANALYSIS AND EXCLUSIONARY RULE’S DETERRENT RATIONALE CONFIRM THAT THIS COURT SHOULD ADMIT THE EVIDENCE FOUND IN THE DEFENDANT’S CAR. ....................................................... 10

A. The discovery of the outstanding arrest warrant after an illegal stop resolves the Brown factor analysis in the City’s favor because it is an intervening circumstance, the time elapsed is irrelevant, and the illegal stop was not flagrant or purposeful. ............................ 11 1. The discovery of an outstanding arrest warrant was an intervening circumstance because it provided an independent legal basis for arrest. .................................................... 11 2. Because coercion is not an issue in this case, the time elapsed between the illegal stop and evidence acquisition is irrelevant. .................................................................................. 14 3. Officer Ohno’s conduct was not purposeful or flagrant because he did not exploit the illegality of the stop to find evidence and stopped the Defendant due to an emotional, automatic reaction. ................................................................................................................ 15 B. Applying the exclusionary rule in the context of an unexpected discovery of an arrest warrant following an improper police stop will not deter unconstitutional police conduct and will impose an unjustifiable cost on public safety. ............................................................... 16

CONCLUSION ........................................................................................................................... 19

iv

TABLE OF AUTHORITIES

CASES

Brown v. Illinois, 422 U.S. 590 (1975) ....................................................................... 10, 13, 15, 17

City of New Olympia v. Somerville, 496 N.E.3d 12 (Wig. 2013) ............................................. 1, 14

City of New Olympia v. Somerville, No. 2013-CM-0967 (Wig. Cir. Ct. Sept. 27, 2013) ........... 1, 2

Davis v. United States, 131 S.Ct. 2419 (2011) ....................................................................... 10, 16

District of Columbia v. Heller, 554 U.S. 570 (2008) ............................................................. passim

Dunaway v. New York, 442 U.S. 200 (1979) ................................................................................ 13

Herring v. United States, 555 U.S. 135 (2009) ................................................................. 11, 16, 18

Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012) .............................................. 5, 7

McBath v. State, 108 P.3d 241 (Alaska Ct. App. 2005) ............................................................... 14

McDonald v. City of Chicago, 130 S.Ct. 3020 (2010) ............................................................ 4, 5, 7

Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012)....................................................................... 5, 8

Mosby v. Senkowski, 470 F.3d 515 (2d Cir. 2006) ....................................................................... 12

Pennsylvania Bd. of Prob. & Parole v. Scott, 524 U.S. 357 (1998) ............................................. 18

Peterson v. Martinez, 707 F.3d 1197 (10th Cir. 2013) ................................................................... 5

State v. Hummons, 253 P.3d 275 (Ariz. 2011).............................................................................. 14

State v. Huntly, 25 N.C. (3 Ired.) 418 (N.C. 1843) ......................................................................... 9

State v. Mazuca, 375 S.W.3d 294 (Tex. Crim. App. 2012) .......................................................... 15

State v. Strieff, 286 P.3d 317 (Utah App. 2012) ..................................................................... 11, 12

United States v. Castillo, 238 F.3d 424 (6th Cir. 2000)................................................................ 12

United States v. Ceccolini, 435 U.S. 268 (1978) .......................................................................... 13

United States v. Faulkner, 636 F.3d 1009 (8th Cir. 2011) ............................................................ 13

v

United States v. Green, 111 F.3d 515 (7th Cir. 1997) ........................................................... passim

United States v. Gross, 662 F.3d 393 (6th Cir. 2011) ............................................................. 17, 18

United States v. Liss, 103 F.3d 617 (7th Cir. 1997) ................................................................ 12, 13

Wong Sun v. United States, 371 U.S. 471 (1963) ................................................................... 10, 12

STATUTES

2 Edw. 3, c. 3 (1328) (Eng.) ............................................................................................................ 8

New Olympia Mun. Code § 8-24-17 .............................................................................................. 1

OTHER AUTHORITIES

1 Sir William Blackstone, Commentaries on the Laws of England 139 (1769) ............................. 8

4 Sir William Blackstone, Commentaries on the Laws of England 148–49 (1769). ...................... 8

Allen Rostron, Justice Breyer’s Triumph in the Third Battle Over the Second Amendment,

80 Geo. Wash. L. Rev. 703, 756 (2012) ..................................................................................... 5

Patrick J. Charles, The Faces of the Second Amendment Outside the Home: History Versus

Ahistorical Standards of Review, 60 Clev. St. L. Rev. 1 (2012) ............................................ 8, 9

1

OPINIONS BELOW

The opinion of the Circuit Court of the Tenth Judicial Circuit for the State of Wigmore is

reported at City of New Olympia v. Somerville, No. 2013-CM-0967 (Wig. Cir. Ct. Sept. 27,

2013).

The opinion of the Supreme Court of Wigmore is reported at City of New Olympia v.

Somerville, 496 N.E.2d 12 (Wig. 2013).

STATEMENT OF THE CASE

From June through September 2012, the City of New Olympia suffered record numbers

of gun murders. City of New Olympia v. Somerville, No. 2013-CM-0967, at 4 (Wig. Cir. Ct. Sept.

27, 2013). In that period alone nearly three hundred people were killed by gunfire. Id. at 4.

Responding to the public’s outrage over this killing spree, the City Council acted. Id. at 4.

Relying on a university study showing a statistically significant increase in gun violence

over the past five summers, the Council passed an ordinance to regulate possession of firearms in

public places. Id. at 4–5. The ordinance imposes a seasonal prohibition on the public possession

of firearms in New Olympia, subject to three exceptions. New Olympia Mun. Code § 8-24-17.

First, the ordinance does not apply to possession of firearms within one’s home or business. Id.

at § 8-24-17(a). Second, the ordinance permits individuals to transport disassembled firearms by

vehicle, so long as they are stored outside the passenger compartment. Id. at § 8-24-17(b).

Citizens may still transport firearms to hunting grounds and shooting ranges, which are located

outside city limits. City of New Olympia v. Somerville, 496 N.E.3d 12, 13 (Wig. 2013). Third, the

City’s code provides profession-based exceptions to the ordinance’s seasonal regulations. Id. at

13 n.1.

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City police enforced the ordinance in the summer of 2013. Somerville, No. 2013-CM-

0967 at 5. There was a drastic decline in gun-related deaths from the year before—a ten-year low

in New Olympia. Id. at 5.

On July 4, 2013, Bud Somerville was driving his car to a park just outside New Olympia

city limits. Id. Somerville had a loaded pistol stashed underneath a fiddle case in the car’s

passenger compartment. Id. at 5–6.

As Somerville was traveling toward the city limits, he passed New Olympia police officer

Apolo Ohno’s patrol car. Id. at 5. At the time, Ohno was a ten-year veteran of the Police

Department, and had never received a citizen complaint. Id. Ohno first noticed the unique teal

color of Somerville’s vehicle and then a bright bumper sticker reading, “Folk the Police.” Id.

Ohno’s anger at the sight of the bumper sticker compelled him, without forethought, to stop

Somerville. Id. at 5, 9. The record does not indicate Ohno knew Somerville, or saw who was

driving the car.

Ohno approached Somerville’s car and asked for his license and registration. Id. at 5–6.

Ohno confirmed Somerville had not been speeding. Id. at 6. Ohno returned to his patrol car to

check Somerville’s license and registration in accordance with police protocol. Id. A police

dispatcher promptly informed Ohno that Somerville had an outstanding arrest warrant for a

failure to appear in court to contest a ticket. Id.

Ohno notified Somerville he had to search Somerville’s car and take him to the station. Id.

Ohno quickly discovered marijuana and a loaded pistol in the backseat. Id. Ohno informed

Somerville that it was illegal to drive with a loaded firearm and arrested him. Id. at 7.

Somerville was charged and convicted for 1) publicly possessing a loaded firearm in

violation of New Olympia’s seasonal firearm regulation, and 2) possessing marijuana in

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violation of state law. Id. at 7, 12. In response, Somerville filed a motion to dismiss the firearm

possession charge and a motion to suppress both the firearm and marijuana evidence. Id. at 4.

SUMMARY OF THE ARGUMENT

This Court should reverse the lower court’s decision that misinterpreted and misapplied

the Second Amendment and the exclusionary rule.

First, a review of the text, history, and tradition of the Second Amendment, conducted

without any government interest balancing, reveals that New Olympia’s seasonal regulation is

less restrictive than traditionally acceptable regulations on firearms in public places. At the time

of the Second Amendment’s passage, the government could not unduly restrict a citizen’s ability

to possess firearms for purposes of militia service or protection of self, family, and property.

However, it was well understood that government could regulate and even ban firearms in public

places.

New Olympia’s seasonal firearm regulation falls within the scope of the Second

Amendment as envisioned by the framers. New Olympia citizens have the unrestricted right to

keep and to bear arms in their homes and businesses. The ordinance does not affect citizens’

abilities to obtain firearms. Citizens may also transport their firearms subject only to a seasonal

regulation that the firearm be disassembled and properly stored. These regulations are less

restrictive than historic regulations, meaning they are constitutionally permissible.

Second, Officer Ohno’s improper yet non-deliberate decision to stop Somerville, the

Defendant, does not merit application of the exclusionary rule. Ohno’s discovery of the

outstanding arrest warrant was an intervening circumstance that purged any taint of illegality

stemming from the stop. Besides this isolated error, Ohno otherwise followed acceptable police

protocol. The purpose of the exclusionary rule is to deter purposeful and flagrant police

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misconduct that erodes the fabric of the Fourth Amendment. While Ohno erred in his decision to

pull over Defendant, his decision was neither purposeful nor flagrant and does not reflect a

greater initiative of the New Olympia police to wrongfully detain its citizens. Rather than use the

exclusionary rule to punish the New Olympia police for an outlier event, the Court should

consider the public safety concerns of permitting known suspects to evade detection because of

isolated police mistakes. Thus, the evidence against the Defendant was properly included during

his trial and Defendant’s conviction should be upheld.

ARGUMENT

I. NEW OLYMPIA’S SEASONAL FIREARM ORDINANCE IS CONSTITUTIONAL BECAUSE ITS SEASONAL REGULATIONS ARE LESS RESTRICTIVE THAN TRADITIONALLY ACCEPTABLE REGULATIONS.

This Court should uphold New Olympia’s seasonal firearm regulation because a

historical and doctrinal analysis of the Second Amendment reveals the regulation is less

restrictive than those envisioned by the framers. In District of Columbia v. Heller, this Court

struck down an absolute ban on handguns, explaining the text, history, and tradition of the

Second Amendment, rather than a government interest balancing test, determine the scope of the

amendment’s protections. 554 U.S. 570, 629–35 (2008). The Court in McDonald v. City of

Chicago, Ill. repeated this type of analysis. 130 S.Ct. 3020, 3043–50 (2010) (plurality opinion as

to grounds for Fourteenth Amendment making Second Amendment applicable to the states). The

text, history, and tradition of the Second Amendment demonstrate New Olympia’s seasonal

firearm regulation is less restrictive than historically acceptable firearm regulations, meaning the

Court should find it constitutional.

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A. To affirm the Heller and McDonald Courts’ rejection of interest balancing, this Court should employ a historical and textual standard of review that focuses on the scope of traditionally acceptable firearm regulations.

Since Heller, many lower courts have ignored its rejection of interest-balancing tests, a

trend the Court should stop by establishing a standard of review that solely assesses whether the

gun law in question exceeds the scope of traditionally acceptable regulations as understood at the

time of the Second Amendment. Heller rejected the use of interest-balancing tests out of a fear

that courts would inquire “whether the right is really worth insisting upon,” instead of enforcing

the intended scope of the amendment as established at the time of the founding. 554 U.S. at 634–

35. The Heller Court concluded, “few laws in the history of our Nation have come close to the

severe restriction” of the handgun ban. Id. at 629. McDonald confirmed the rejection of interest

balancing, ruling, “we expressly rejected the argument that the scope of the Second Amendment

right should be determined by judicial interest balancing.” 130 S.Ct. at 3047.

Nonetheless, most lower courts use a two-step analysis that, after looking to text, history,

and tradition, assesses the government’s legitimate interests in and empirically based rationales

for passing gun law in question. See, e.g., Moore v. Madigan, 702 F.3d 933, 937–40 (7th Cir.

2012). Some courts justify using scrutiny-level analyses claiming Heller and McDonald provided

insufficient guidance on how to assess modern gun laws. See, e.g., Kachalsky v. County of

Westchester, 701 F.3d 81, 89 (2d Cir. 2012) (concern over “terra incognita” unexplored by

Heller); see also Peterson v. Martinez, 707 F.3d 1197, 1207–09 (10th Cir. 2013) (“the Court has

provided precious little guidance.”). Whatever the reason, most lower courts improperly ignore

the Heller Court’s clear directive to “assess gun bans and regulations based on text, history, and

tradition, not by a balancing test . . . .” Heller v. District of Columbia, 670 F.3d 1244, 1271 (D.C.

6

Cir. 2011) (Kavanaugh, J., dissenting); see also Allen Rostron, Justice Breyer’s Triumph in the

Third Battle Over the Second Amendment, 80 Geo. Wash. L. Rev. 703, 756 (2012).

Following the Heller and McDonald Courts’ practice of inquiring how comparatively

restrictive a gun law is in light of history and tradition, New Olympia’s regulation is

constitutional because its burdens do not offend the historical scope of Second Amendment.

B. The seasonal firearm regulation does not frustrate the express purpose of the Second Amendment and is less restrictive than traditionally accepted firearm restrictions.

New Olympia’s ordinance is a traditionally acceptable type of firearm regulation and is

thus constitutional. This is because the regulation 1) does not frustrate the express purpose

behind the Second Amendment and 2) is less intrusive than other traditionally acceptable

restrictions on the individual right to self-defense.

1. New Olympia’s regulation does not frustrate the stated purpose of the Second Amendment.

New Olympia’s seasonal firearm regulation does not frustrate the explicit purpose for

which the framers codified the Second Amendment. Heller leaves no room to dispute the driving

purpose behind the Amendment: to secure the state against invasions, insurrections, and tyranny

by allowing all citizens to “bring the sorts of lawful weapons that they possessed at home to

militia duty.” 554 U.S. at 627. New Olympia’s regulation does not interfere with citizens’ ability

to bring firearms to militia duty. This is because it does not restrict the right to buy firearms or

keep them at home. Further, the regulation does not restrict one’s ability to transport firearms,

but only regulates the manner in which one may transport firearms during the summer. Thus, the

regulation permits citizens to bring weapons from home to militia duty, and wholly accords with

the explicit purpose of the Second Amendment.

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2. Traditional laws on firearms in public places imposed far greater restrictions on the right to self-defense than the New Olympia seasonal regulation.

New Olympia’s temporary restriction on possessing and carrying a firearm outside of the

home does not unduly disrupt the individual right to defense of “self, family, and property” also

protected by the Second Amendment. Heller, 554 U.S. at 629. This individual right is “most

acute” in the home, but is limited. Heller, 554 U.S. at 595, 626; McDonald, 130 S.Ct. at 3047.

Heller expressly did not provide an exhaustive list of what types of regulations are acceptable.

Heller, 554 U.S. at 626, 635. Instead courts should assess text, history, and tradition when

analyzing the constitutionality of gun regulations. Heller v. District of Columbia, 670 F.3d 1244,

1278 (D.C. Cir. 2011). At least one lower court has reasonably held that this textual, historical,

and traditional analysis does not require a court to locate an exact historical analogue for the law

in question, but only a “longstanding cousin.” Kachalsky v. County of Westchester, 701 F.3d 81,

91 (2d Cir. 2012). Such an analysis demonstrates New Olympia’s seasonal regulation has

analogous predecessors. New Olympia’s regulation lacks an exact predecessor not because it

imposes an unprecedented new burden on firearm possession, but rather because it imposes the

less burdensome restriction of being seasonal, rather than permanent.

The Heller and McDonald Courts determined the existence of the individual right to

possess and carry firearms by reviewing Blackstone’s works, which “constituted the preeminent

authority on English law for the founding generation.” Heller, 554 U.S. at 593–94. Blackstone

wrote the scope of the individual right to have arms for self-defense is “a public allowance,

under due restrictions, of the natural right of resistance and self-preservation, when the sanctions

of society and laws are found insufficient to restrain the violence of oppression.”

8

1 Sir William Blackstone, Commentaries on the Laws of England 139 (1769).1 The Heller Court

relied primarily on Blackstone to show the roots of the individual right to firearms, which

stemmed from a fear of total disarmament. Heller, 554 U.S. at 592–93. The Heller Court did not

interpret Blackstone’s “due restrictions” clause because the Court was concerned with the root of

the individual right to bear arms, not the scope of the right. A detailed look at the clause shows

the English government had broad authority to restrict the right to firearms in public places.

Blackstone’s book on public wrongs indicates the government’s authority to regulate

firearms in public was broad, writing,

[t]he offence of riding or going armed, with dangerous or unusual weapons, is a crime against the public peace, by terrifying the good people of the land; and is particularly prohibited by the statute of Northampton, 2 Edw. III. C. 3. Upon pain of forfeiture of the arms, and imprisonment during the king’s pleasure.

4 Sir William Blackstone, Commentaries on the Laws of England 148–49 (1769). The cited

statute made it unlawful, “to go nor ride armed by Night nor by Day in Fairs, Markets, nor in the

Presence of the Justices or other Ministers nor in no Part elsewhere.” 2 Edw. 3, c. 3 (1328)

(Eng.). At the time, the statute was not a novel innovation on government control of firearms, but

rather a common exercise of authority to prohibit the public from going about armed to ensure

order and “prevent breaches of the peace such as theft and robbery.” See Patrick J. Charles, The

Faces of the Second Amendment Outside the Home: History Versus Ahistorical Standards of

Review, 60 Clev. St. L. Rev. 1, 11–13 (2012). Although one circuit court panel interpreted this

statute to only ban firearm possession in certain public places, the court did not cite any

authority for support or address the “no Part elsewhere” clause. Moore v. Madigan, 702 F.3d 933,

936 (7th Cir. 2012). Thus, this interpretation falls short, giving short shrift to the statute’s

1 All quoted historic text has been adjusted to account for the modern usage of “s” and “f.”

9

disjunctive nature. Later English and American laws and regulations based on the statute further

undermine the Moore court’s interpretation, as they indicate the statute applied to all public

places. See Charles, Faces of the Second Amendment, supra at 8–25, 31–36. Indeed, the Heller

court itself reviewed a number of laws passed after the statute, including an English

proclamation that “no Person should bear any Arms within London, and the Suburbs.” Heller,

554 U.S. at 587 n.10.

Early American state laws based on the 1328 Northampton statute further support the

broad scope of acceptable restrictions on firearm possession in public. Three states expressly

adopted the Northampton statute immediately following the passage of the United States

Constitution. Further, some states that did not expressly codify the statute still enforced it by

common law, as indicated by the oaths of constable. Charles, Faces of the Second Amendment,

supra at 31–34. However, mid-eighteenth century case law indicates that the law did not apply to

those carrying a firearm for a “lawful purpose of business or amusement.” State v. Huntly, 25

N.C. (3 Ired.) 418 (N.C. 1843).

The New Olympia seasonal firearm regulation is less intrusive than traditionally

acceptable government laws restricting the public possession of firearms. First, unlike the

Northampton statute and its early American successors, which indefinitely banned carrying

firearms in public, the New Olympia ordinance only regulates arms in public places during a

specific season of the year. Second, the regulation does not regulate possession of firearms in

one’s place of business or prohibit the transportation of firearms. Further, it does not preempt

other subsections of the Municipal Code containing profession-based exceptions to public

firearm possession. Thus, the statute accounts for lawful possession for business and amusement

purposes in accordance with Huntly. In summary, while the New Olympia seasonal regulation

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may not have any exact ancestors, it does have longstanding cousins. The regulation respects the

historic limits on government control over firearms in the public sphere and therefore does not

violate the Second Amendment.

II. BOTH THE BROWN FACTOR ANALYSIS AND EXCLUSIONARY RULE’S

DETERRENT RATIONALE CONFIRM THAT THIS COURT SHOULD ADMIT THE EVIDENCE FOUND IN THE DEFENDANT’S CAR.

The Defendant is not entitled to the suppression of the evidence found in his car after the

illegal traffic stop. Where a defendant argues evidence must be excluded due to illegal police

conduct, courts must decide whether the discovery of incriminating evidence stemmed from

actions sufficiently distinct (or “attenuated”) from the illegal conduct to “dissipate the taint” of

illegality. Wong Sun v. United States, 371 U.S. 471, 487 (1963). To determine whether the

evidence is attenuated from illegal police conduct, this Court has considered three factors: 1) the

presence of intervening circumstances, 2) the temporal proximity between the illegal police

action and evidence acquisition, and 3) the purpose and flagrancy of the official misconduct.

Brown v. Illinois, 422 U.S. 590, 604 (1975) (hereinafter “Brown factors”). Even after considering

these factors, the final “question is still whether the evidence came from ‘the exploitation of that

illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’”

United States v. Green, 111 F.3d 515, 521 (7th Cir. 1997) (quoting Wong Sun, 371 U.S. at 488).

Further, this Court has held the exclusionary rule should not be applied when its social

costs outweigh its deterrent effect. Davis v. United States, 131 S.Ct. 2419, 2426 (2011). This

Court created the exclusionary rule to compel respect for the Fourth Amendment. Id. As such, its

“sole purpose . . . is to deter future Fourth Amendment violations,” not to redress personal injury

or confer individual rights. Id. Thus, when confronted with a motion to suppress evidence, courts

also must consider whether the application of the exclusionary rule will meaningfully deter the

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police misconduct at issue and whether “such deterrence is worth the price paid by the justice

system.” Herring v. United States, 555 U.S. 135, 136 (2009).

This Court should deny the Defendant’s motion to suppress evidence because: A) Officer

Ohno’s discovery of the Defendant’s outstanding arrest warrant was an intervening circumstance

that resolves the Brown factor analysis in the City’s favor; and B) holding an outstanding arrest

warrant insufficient for attenuation would not further the deterrence rationale of the exclusionary

rule and would unjustifiably leave the public vulnerable to individuals that the police and a

supervising judge have already identified as suspected criminals.

A. The discovery of the outstanding arrest warrant after an illegal stop resolves the Brown factor analysis in the City’s favor because it is an intervening circumstance, the time elapsed is irrelevant, and the illegal stop was not flagrant or purposeful.

Officer Ohno’s discovery of an outstanding arrest warrant purged the taint of the illegal

stop because 1) the discovery of an outstanding arrest warrant provided an independent legal

basis for arrest, uninfluenced by Ohno’s behavior, and therefore was an intervening circumstance,

2) the outstanding arrest warrant renders the temporal proximity irrelevant, and 3) Ohno stopped

the Defendant due to an emotional, automatic reaction to his bumper sticker, not a purposeful,

investigatory plan.

1. The discovery of an outstanding arrest warrant was an intervening circumstance because it provided an independent legal basis for arrest.

Officer Ohno’s discovery of an outstanding arrest warrant was an intervening circumstance

that purged the taint of the illegal stop. Intervening circumstances are events that create a “clean

break in the chain of events” between the potentially coercive effects of the illegal police action

and the ultimate discovery of incriminating evidence. State v. Strieff, 286 P.3d 317, 327 (Utah

App. 2012) cert. granted, 298 P.3d 69 (Utah 2013). An event breaks the causal chain between

12

the illegal police conduct and acquisition of evidence if it provides a police officer an

independent legal basis to arrest a defendant. Green, 111 F.3d at 522. Examples of intervening

circumstances sufficient to purge the taint of illegality include discovering information after an

unlawful arrest linking the defendant to a separate crime, Mosby v. Senkowski, 470 F.3d 515, 523

(2d Cir. 2006), a defendant recklessly fleeing the scene after an illegal stop, United States v.

Castillo, 238 F.3d 424 (6th Cir. 2000), and a defendant’s voluntary act after illegal police action,

such as a voluntary confession, Wong Sun, 371 U.S. at 491, or consent to a search without a

warrant, United States v. Liss, 103 F.3d 617, 622 (7th Cir. 1997).

Like these events were independent legal bases to arrest the defendants despite earlier

illegal police action, Officer Ohno’s discovery of the Defendant’s outstanding arrest warrant also

provided an independent legal basis to arrest the Defendant. Discovery of a warrant breaks the

chain of events leading to the discovery of incriminating evidence because it indicates that

another individual previously found probable cause to arrest the defendant. See Strieff, 286 P.3d

at 328. Despite the fact that Ohno erroneously stopped the Defendant, Ohno discovered the

marijuana and firearm “only after” discovering an independent legal basis to arrest the

Defendant: an outstanding arrest warrant. United States v. Simpson, 439 F.3d 490, 496 (8th Cir.

2006).

Further, an outstanding arrest warrant is a particularly compelling intervening

circumstance because it does not trigger concerns that the illegal police behavior provoked a

defendant’s criminal act. Green, 111 F.3d at 522. Specifically, when intervening circumstances

involve a defendant’s voluntary act or an independent crime committed after unconstitutional

police conduct, courts must ensure the defendant’s behavior was a product of the defendant’s

13

free will rather than any lingering effects of the unconstitutional conduct. Id.;see also Dunaway v.

New York, 442 U.S. 200, 217–18 (1979).

For example, illegal police conduct may unduly influence a defendant to consent to an

otherwise unjustified search or commit a reactionary crime. Liss, 103 F.3d at 622; United States

v. Garcia-Jordan, 860 F.2d 159, 161 (5th Cir.1988). In these situations, the defendant’s actions

are not truly voluntary, as they are provoked by the previous illegal conduct. Id. However, when

a police officer discovers contraband pursuant to an outstanding arrest warrant after an illegal

stop, any influence the unlawful stop may have on the defendant is irrelevant because the warrant

allows an officer to search a defendant without his or her consent. United States v. Faulkner, 636

F.3d 1009, 1015 (8th Cir. 2011); Green, 111 F.3d at 522.

Officer Ohno’s improper choice to stop the Defendant did not influence the existence of an

arrest warrant, and Ohno’s choice to search the Defendant’s car did not stem from the

Defendant’s actions after the stop. The warrant predated the illegal stop, and was issued by an

independent judicial authority. Further, the illegal stop did not trigger the warrant; the warrant

stemmed from an unconnected incident—the Defendant’s prior failure to appear in court for a

separate citation. That the Defendant had an arrest warrant when Ohno stopped him was a

coincidence unrelated to the illegal stop.

That Officer Ohno would not have discovered the outstanding arrest warrant “but for”

illegally stopping the Defendant is irrelevant. This Court has repeatedly rejected a rule that

would exclude any evidence that would not have been found but for unconstitutional police

action. United States v. Ceccolini, 435 U.S. 268, 276 (1978); Brown, 422 U.S. at 603. The

appellate court improperly adopted a “but for” rule in granting the Defendant’s motion to

suppress evidence. In deciding the warrant was not an intervening circumstance, the appellate

14

court noted, “[t]he only reason Officer Ohno had the information necessary to run the warrant

check was because he illegally stopped Somerville’s vehicle.” City of New Olympia v. Somerville,

496 N.E.3d 12 (Wig. 2013). However, reliance on this fact is erroneous, as this Court has

rejected a per se application of the exclusionary rule. Instead, this Court should consider the

discovery of the outstanding warrant as an intervening circumstance in accordance with the

proper Brown factor analysis. Thus, the arrest warrant it is a particularly compelling intervening

circumstance untainted by the initial stop and, when considered with the other factors in this case,

resolves the Brown analysis in the City’s favor.

2. Because coercion is not an issue in this case, the time elapsed between the illegal stop and evidence acquisition is irrelevant.

The temporal proximity between the illegal stop and Officer Ohno’s discovering the

contraband is irrelevant. Most courts agree the time elapsed is less important than the other

factors, particularly in the context of a compelling intervening circumstance, like the subsequent

discovery of an outstanding arrest warrant. See United States v. Johnson, 383 F.3d 538, 544–45

& n. 7 (7th Cir. 2004); see also State v. Hummons, 253 P.3d 275, 278 (Ariz. 2011) (time elapsed

is the “least important Brown factor.”); see also McBath v. State, 108 P.3d 241, 248 (Alaska Ct.

App. 2005) (The time elapsed between the illegal stop and the discovery of the outstanding arrest

warrant is short “in essentially every case in this area . . . [b]ut the courts . . . have all but

unanimously concluded that, in this kind of situation, this . . . Brown factor is outweighed by the

others.”). The primary purpose of the Brown time-elapsed factor is to deter coercion. Johnson,

383 F.3d at 544–55 & n. 7. Thus, a court may ignore this factor when it has already addressed

and dismissed coercion concerns in the intervening circumstances factor. Reed v. State, 809

S.W.2d 940, 946 (Tex. App. 1991); see also Green, 111 F.3d at 522 (finding no coercion

concerns where police discover contraband pursuant to arrest warrant after an illegal stop).

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Because the discovery of an outstanding arrest warrant negates any coercion concerns in

this case, the time elapsed between the illegal stop and evidence acquisition is irrelevant.

3. Officer Ohno’s conduct was not purposeful or flagrant because he did not exploit the illegality of the stop to find evidence and stopped the Defendant due to an emotional, automatic reaction.

Officer Ohno’s conduct was not flagrant because he did not exploit the illegality of the stop

to find the evidence and was not purposeful because he stopped the Defendant in an automatic

emotional response to his bumper sticker, without forethought.

Officer Ohno’s conduct was not flagrant. Police conduct is flagrant if 1) the impropriety of

the officials conduct was obvious and 2) the official exploited the impropriety to benefit the

police. Brown, 422 U.S. at 605; United States v. Simpson, 439 F.3d 490, 496 (8th Cir. 2006). An

official does not exploit the impropriety if he or she “never [goes] beyond the bounds of what

would have been constitutionally permissible had the stop in fact been justified at its inception.”

State v. Mazuca, 375 S.W.3d 294, 309–10 (Tex. Crim. App. 2012), reh'g denied (Sept. 12, 2012),

cert. denied, 133 S. Ct. 1724 (2013).

While Officer Ohno stopped the Defendant solely because of his bumper sticker, an obvious

error, Ohno’s conduct after the stop diminishes its flagrancy. After stopping the Defendant, Ohno

did not exploit the illegality of the stop because he merely checked the Defendant’s license and

registration in accordance with standard, constitutionally permissible police procedure. He

neither badgered the Defendant into confessing nor provoked him to commit another crime in

order to benefit the police. Thus, this Court should give little weight to the flagrancy prong.

Officer Ohno’s misconduct was not purposeful. Misconduct is purposeful if it was

“investigatory in design and purpose, executed in the hope that something might turn up.” Brown,

422 U.S. at 605. As applied by the courts, “investigatory in purpose” requires forethought, such

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as targeting a specific known suspect hoping to discover information relevant to an ongoing

investigation. See, e.g., id. (police working on an existing investigation and stopping known

affiliates of their suspect hoping to discover information was purposeful, illegal conduct).

Here, Officer Ohno did not know or even see the Defendant before stopping him. The

Defendant happened to pass Ohno on the freeway. In an emotional reaction to an offensive

bumper sticker, “without thinking twice,” Officer Ohno stopped the Defendant. This decision

was not the culmination of a plan “calculated to cause surprise, fright, and confusion,” but rather

an unplanned, unexpected reaction for an officer who has never received a citizen complaint in

ten years of public service. Brown, 422 U.S. at 605. Thus, Ohno’s conduct was not purposeful.

This Court should therefore not apply the exclusionary rule because the outstanding arrest

warrant was a compelling intervening circumstance, untainted by any purposeful or coercive

behavior by Officer Ohno, which resolves the Brown factor analysis in the City’s favor.

B. Applying the exclusionary rule in the context of an unexpected discovery of an arrest warrant following an improper police stop will not deter unconstitutional police conduct and will impose an unjustifiable cost on public safety.

Holding an outstanding warrant insufficient for attenuation would be improper because it

would not further the deterrent purpose of the exclusionary rule, and would impose a great cost

to public safety. The exclusionary rule should not be applied when its social costs outweigh its

deterrent effect. Davis, 131 S. Ct. at 2426. The exclusionary rule’s “sole purpose . . . is to deter

future Fourth Amendment violations,” not to redress personal injury or confer individual rights.

Id. Thus, before applying the exclusionary rule after a Fourth Amendment violation, courts must

consider whether its application will meaningfully deter the police misconduct at issue and

whether “such deterrence is worth the price paid by the justice system.” Herring, 555 U.S. at

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136; see also Brown, 422 U.S. at 608–09 (Powell, J., concurring in part) (same). In this case, the

social cost of applying the exclusionary rule outweighs any minimal deterrent effect.

First, suppressing evidence found after the discovery of an arrest warrant would not deter

illegal police conduct. “The basic purpose of the rule . . . is to remove possible motivations for

illegal arrests.” Brown, 422 U.S. at 610, (Powell, J., concurring). However, the exclusionary rule

does not serve this purpose when it suppresses evidence found in a manner the police could not

normally predict. See id. (Explaining the rule should not apply to truly voluntary statements

made long after an illegal arrest because police “normally will not make an illegal arrest in the

hope of eventually obtaining such a truly volunteered statement.”).

Like police do not normally make illegal arrests in the hope of eventually obtaining a

truly volunteered statement, police do not normally make illegal traffic stops in the hope of

finding an outstanding arrest warrant. Like police cannot know which individuals will eventually

freely cooperate at the time they make an illegal arrest, police cannot know which defendants

have outstanding warrants at the time they make an illegal stop. This is because the preexistence

of an arrest warrant and voluntary cooperation are both outside police control.

It is illogical to assume allowing consideration of an outstanding arrest warrant in an

attenuation analysis would encourage a “new form of police investigation” where officers

embark on fishing expeditions, stopping individuals in the hope of finding an arrest warrant.

United States v. Gross, 662 F.3d 393, 404 (6th Cir. 2011). First, most people do not have

outstanding arrest warrants. See Green, 111 F.3d at 523 (labeling a situation where an official

discovers an arrest warrant after an illegal stop an “unusual case.”). Thus, the police do not have

a rational incentive to make illegal stops just to check for outstanding warrants because the odds

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are not in their favor. Such a policy would probably result in a flood of unwanted civil rights

complaints rather than an increase in arrests of wanted suspects.

Additionally, in cases where the officer unlawfully stops a defendant based on a “police

hunch” that the particular defendant may have an arrest warrant, the Brown analysis will account

for this type of egregious conduct. Where the police target defendants based on an

unsubstantiated hunch that they have warrants, “the warrant is not an intervening cause for the

discovery of evidence. Rather, it is the primary cause . . . intertwined with the primary taint.”

Gross, 662 F.3d at 411 (Gibbons, J., concurring in part and dissenting in part). However, in cases

where the police do not suspect an outstanding arrest warrant, but coincidentally discover one

after the stop, suppressing resulting evidence does not serve the deterrent rationale as the warrant

did not motivate the illegal stop. Thus, categorically disregarding the discovery of warrants in

attenuation analyses does not advance the exclusionary rule’s deterrent purpose.

Even assuming some marginal deterrent effect, the great social cost involved outweighs

any benefit. Where the marginal benefits that might follow from suppressing evidence cannot

justify the social costs of exclusion, the court should not apply the exclusionary rule. Herring,

555 U.S. at 136. While Herring and Davis arose in the context of a good faith exception to the

exclusionary rule, the same rationale of balancing deterrence with social cost is applicable to all

exclusionary rule cases, and thus applies here. See, e.g., Pennsylvania Bd. of Prob. & Parole v.

Scott, 524 U.S. 357, 364–65 (1998) (Explaining “cases have repeatedly emphasized” that the

exclusionary rule places a “costly toll” on the public, so courts should determine whether its

deterrent effects outweigh these high social costs).

Applying the exclusionary rule in this case would suggest that if the police improperly

stop a car and discover the driver is wanted for a crime, they must make an “official call of ‘Olly,

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Olly, Oxen Free,’” leaving the public vulnerable to known criminal suspects. Green, 111 F.3d at

521. While here, the Defendant’s warrant arose from a minor infraction, the appellate court’s

holding would apply equally to defendants wanted for murder as it does not consider the social

costs. Such a policy would be unjustifiable. Instead, this Court should adopt a policy that allows

officers to follow standard protocol after encountering suspects with outstanding arrest warrants

in order to protect the public.

Thus, this Court should deny the Defendant’s motion to suppress evidence because both

the Brown factor analysis and policy considerations about public safety weigh in the City’s favor.

CONCLUSION

For the foregoing reasons, this Court should reverse the Supreme Court of Wigmore’s decision

as to the Defendant’s Second Amendment claim and motion to suppress evidence.