Reply Brief — Shawn William Wass, Petitioner v. Idaho

No. 17-425

IN THE

Supreme Court of the United States

_________

SHAWN WILLIAM WASS,

Petitioner

v.

STATE OF IDAHO,

Respondent.

________

On Petition For A Writ Of Certiorari To

The Supreme Court of Idaho

________

REPLY BRIEF FOR PETITIONER

________

ERIC D. FREDERICKSEN

ANDREA REYNOLDS

STATE APPELLATE

PUBLIC DEFENDER

322 East Front Street,

Suite 570

Boise, ID 83702

AMIR H. ALI

Counsel of Record

RODERICK & SOLANGE

MACARTHUR JUSTICE CENTER

718 7th Street NW

Washington, DC 20001

(202) 869-3434

amir.ali@macarthurjustice.org

Attorneys for Petitioner

i

TABLE OF CONTENTS

Table Of Authorities ............................................................ ii

Reply Brief For Petitioner ................................................... 1

Conclusion ............................................................................ 5

ii

TABLE OF AUTHORITIES

Page(s)

CASES

Freeman v. United States, 564 U.S. 522 (2011) ................. 4

Hughes v. United States, No. 17-155

(cert. granted Dec. 8, 2017) ........................................... 4

Kelly v. State, 997 N.E.2d 1045 (Ind. 2013) ....................... 3

Marks v. United States, 430 U.S. 188 (1977) ..................... 2

Missouri v. Seibert, 542 U.S. 600 (2004) ............................ 1

Reyes v. Lewis, 833 F.3d 1001 (9th Cir. 2016).................... 4

State v. Navy, 688 S.E.2d 838 (S.C. 2010) .......................... 3

State v. Williams, 747 S.E.2d 194

(S.C. Ct. App. 2013) ....................................................... 3

United States v. Rodriguez-Preciado,

399 F.3d 1118 (9th Cir. 2005) ....................................... 4

RULES

Sup. Ct. R. 15(2) .................................................................. 1

OTHER AUTHORITIES

Petition for Writ of Certiorari, Ohio v. Farris,

No. 06-464 (U.S. Oct. 2, 2006),

2006 WL 2826269 .......................................................... 3

Petition for Writ of Certiorari,

South Carolina v. Navy, No. 09-1459

(U.S. May 27, 2010), 2010 WL 2214870 ....................... 3

1

REPLY BRIEF FOR PETITIONER

1. Respondent does not dispute that Petitioner

would have prevailed had the court below applied the

objective, suspect-focused test articulated by the

plurality in Missouri v. Seibert, 542 U.S. 600 (2004).

See Pet. at 24-25. Respondent thus concedes that the

question set forth in the petition—whether the

present circumstances are “governed by the fourjudge plurality’s objective, suspect-focused test, or

Justice Kennedy’s subjective, officer-focused test,”

Pet. at i (citations omitted)—is outcome determinative

and squarely presented. See also Sup. Ct. R. 15(2)

(setting forth Respondent’s obligation to raise such

any such issue in its brief in opposition).

2. Even the most charitable reading of Respondent’s account of lower court decisions describes a

conflict of authority that involves 20-plus circuits and

state high courts that has developed over the past 13and-a-half years. And even under the most charitable

reading, law enforcement and suspects in several

states, such as Kentucky, Michigan, and Georgia, are

accountable to two different constitutional rules at

once. Petitioner is not aware of any instance in which

this Court allowed a conflict of this magnitude and

nature to persist in the face of a conceded opportunity

to resolve it.

In his petition, Petitioner explained that 16 federal

circuits/state high courts and the Supreme Court of

Puerto Rico have concluded that the present circumstances are governed by the subjective, officer-focused

test articulated by Justice Kennedy in Seibert. Pet. at

12-14. On the other hand, eight circuits/state high

2

courts and the D.C. Court of Appeals have concluded

that the present circumstances are governed by the

objective, suspect-focused test articulated by the

plurality opinion. Courts in the latter category have

reached that conclusion in one of two ways: (1)

reasoning that Seibert has no binding opinion and

making an independent determination as to the

correct principles under the Fifth Amendment, Pet. at

15-17; or (2) treating the plurality opinion as controlling, Pet. at 16-17.

Respondent attempts to play with the margins of

this deep, acknowledged conflict by artificially

limiting the question presented. In particular,

Respondent pretends that the relevant question is not

which test governs the circumstances of this case (i.e.,

the question that is concededly dispositive of

Petitioner’s criminal conviction), but instead whether

the court below “err[ed] in holding that the plurality

opinion . . . was not controlling.” BIO at i. With that

sleight of hand, Respondent reaches the rather

remarkable conclusion that lower courts adopting the

plurality test as governing under method (1) above

(i.e., those that have concluded they are free to

conduct an independent analysis of Fifth Amendment

principles and concluded that the plurality opinion

articulates the correct test), as well as lower courts

that have adopted the plurality test without “specific

reference” to Marks v. United States, 430 U.S. 188

(1977), “agree” with the decision below. BIO at 13-14.

That is nonsense. Respondent’s account confirms that,

in conflict with the decision below (and 16 other

circuits or courts of last resort), these several lower

courts apply the plurality’s objective, suspect-focused

3

test and, as Respondent concedes, under that test

Petitioner would have prevailed.

Respondent otherwise offers strained characterizations of some of the lower court decisions that have

adopted the plurality’s test, which contradict the

express language of those decisions,1 subsequent

interpretation by courts in those jurisdictions,2 and

the positions of the attorneys general of those states.3

In any case, Respondent’s whole argument would, at

best, relocate a few lower courts in a 20-plus

jurisdiction split from one side of the split to the other.

3. Respondent begins and spends nearly half of its

brief arguing the merits of which test should govern.

BIO 5-12. Its heavy focus on the merits of the question

1 See, e.g., State v. Navy, 688 S.E.2d 838, 842 (S.C. 2010) (“[D]eliberate practice was not determinative in Seibert.”); Kelly v. State,

997 N.E.2d 1045, 1054 (Ind. 2013) (rejecting the state’s argument

that “Elstad should control” in the absence of deliberate practice

and “consider[ing] this case in light of [the Seibert plurality’s]

five factors”).

2 See, e.g., State v. Williams, 747 S.E.2d 194, 200 (S.C. Ct. App.

2013) (“Our supreme court held the evidence of a deliberate

police practice, the ‘question first’ strategy, was not determinative in Seibert.”).

3 See Petition for Writ of Certiorari at 5, South Carolina v. Navy,

No. 09-1459 (U.S. May 27, 2010), 2010 WL 2214870 (observing

that the South Carolina Supreme Court’s decision in Navy

“applied the plurality test to exclude statements that would have

clearly been admitted under Justice Kennedy’s test”); Petition for

Writ of Certiorari at 1, 7, Ohio v. Farris, No. 06-464 (U.S. Oct. 2,

2006), 2006 WL 2826269 (observing that the Supreme Court of

Ohio “determined that under federal law” the plurality’s “effective warning” test applies).

4

presented simply underscores that Petitioner’s case is

an excellent vehicle to resolve it. The Court should

grant certiorari and allow full briefing on the merits

(which would, of course, include not just argument

pertaining to Marks, but also the appropriate Fifth

Amendment principles).

Respondent appears to take great comfort in the

fact that a large majority of lower courts apply the

subjective, officer-focused test that was applied below.

However, that only highlights that for over a decade,

numerous jurisdictions have been applying a constitutional inquiry that was expressly rejected by at least

seven other members of this Court. Pet. at 26; Reyes

v. Lewis, 833 F.3d 1001, 1008 (9th Cir. 2016)

(Callahan, J., dissenting from denial of rehearing en

banc); United States v. Rodriguez-Preciado, 399 F.3d

1118, 1141 (9th Cir. 2005) (Berzon, J., dissenting).

4. Given the enormous magnitude of this conflict

of authority, there is no realistic possibility that this

Court’s decision in Hughes v. United States, No. 17155 (cert. granted Dec. 8, 2017) (revisiting the fractured decision in Freeman v. United States, 564 U.S.

522 (2011)), will resolve it. Indeed, Respondent has

not even attempted to argue that further percolation

would be beneficial. The Court should thus grant

certiorari and restore uniformity.

In the event that the Court chooses not to resolve

the conflict of authority, however, it should hold this

case pending Hughes and then GVR, in accordance

with customary practice. As Respondent acknowledges, the questions presented in Hughes concern the

proper application of Marks to a fractured decision of

5

this Court, BIO 12, and the decision below turned

upon the Supreme Court of Idaho’s application of

Marks to this Court’s fractured decision in Seibert,

BIO 4. While it is unreasonable to expect that Hughes

will resolve the 20-plus lower court conflict over the

question presented in this case, its resolution will

likely bear on, and may be dispositive of, the analysis

undertaken by the court below.

CONCLUSION

For the foregoing reasons and those stated in the

petition, certiorari should be granted.

Respectfully submitted,

ERIC D. FREDERICKSEN

ANDREA REYNOLDS

STATE APPELLATE PUBLIC

DEFENDER

322 East Front Street,

Suite 570

Boise, ID 83702

AMIR H. ALI

Counsel of Record

RODERICK & SOLANGE

MACARTHUR JUSTICE CENTER

718 7th Street NW

Washington, DC 20001

(202) 869-3434

amir.ali@macarthurjustice.org

Attorneys for Petitioner