Petition for Writ of Certiorari — Swisher v. Virginia

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Supreme Court, U.S.

(1) FILED

ps 1801 MAY7 1999

No. -——

OFFICE OF THE CLERK

IN THE

Supreme Cort of the United States

OCTOBER TERM, 1998

BoBBY WAYNE SWISHER,

Petitioner,

. A

COMMONWEALTH OF VIRGINIA,

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of Virginia

PETITION FOR WRIT OF CERTIORARI

BARBARA K. KAGAN

Counsel of Record

LINDA S. STEIN

L. MATTHEW QUIGLEY

MELINEH B. BLACKWELL

STEPTOE & JOHNSON LLP

1330 Connecticut Avenue, N.W.

Washington, D.C. 20036-1795

(202) 429-3000

Counsel for Bobby Wayne Swisher

WILSON - Eps PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

als

QUESTION PRESENTED

the police station and had not given a “knowing and

intelligent” waiver of his Fourth Amendment rights?

(i)

TABLE OF CONTENTS

Page

QUESTION PRESENTED - i

TABLE OF AUTHORITIES Vv

OPINIONS BELOW 1

JURISDICTION .....

CONSTITUTIONAL PROVISIONS INVOLVED...

STATEMENT OF THE CASE 2

A. Statement Of Facts ; 2

B. Constitutional Issues Raised

REASONS FOR GRANTING THE WRIT

I. A “KNOWING AND INTELLIGENT

WAIVER” STANDARD SHOULD BE AP-

PLIED TO DETERMINE WHETHER CON-

SENT GIVEN BY AN INDIVIDUAL IN CUS-

TODY AT A POLICE STATION IS VOLUN-

a ETE ' 6

A. Schneckloth And Watson Left Open This

Important Question Of Federal Law ....__ 6

B. This Court Has Historically Recognized

Are Required ...... 10

C. The Circuit Courts Have Applied Conflict-

ing Standards To Determine Whether An

Individual Has Given Voluntary Consent

When In Custody At A Police Station...__ 12

(iii)

TABLE OF CONTENTS—Continued

II. IN ANY EVENT, THE TRIAL COURT VIO-

‘CONCLUSION

LATED THIS COURT’S SETTLED FOURTH

AMENDMENT PRECEDENT BY FAILING

TO CONSIDER WHETHER PETITIONER

WAS IN CUSTODY IN DETERMINING THE

VOLUNTARINESS OF HIS CONSENT ..........

APPENDIX

Swisher v. Virginia, 506 S.E.2d 763 (Va.

SETITDD chinssriitantarerceiibaeaiaestaiiiicascdiaccitiiieank anid Alastair

The Virginia Supreme Court’s Denial of Peti-

tioner’s Motion for Rehearing

The District Court’s Oral Decisions in Response

to Petitioner’s Suppression Motions ...._................

Extension of Time for Petitioner to File Peti-

tion for a Writ of Certiorari ...............

Petitioner’s Motion to Suppress ..............0...0.......

Relevant Pages from Petitioner’s Brief to Vir-

ginia Supreme Court

Page

Vv.

TABLE OF AUTHORITIES

CASES Page

Bumper v. North Carolina, 391 U.S. 648 (1968)... 7

Davis v. United States, 328 U.S. 582 (1946) ......... 7

Johnson v. Zerbst, 804 U.S. 458 (19388) ...:......... 9

Jones v. United States, 857 U.S. 498 (1958) ........... 7

Katz v. United States, 8389 U.S. 347 (1967) _.._...... mn 7

Mapp v. Ohio, 867 U.S. 648 (1961) ...

Miranda v. Arizona, 384 U.S. 486 (1966) ............... passi

Ohio v. Robinette, 519 U.S. 88 (1996) 4

Schmerber v. California, 384 U.S. 757 (1966) ..._...

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) ..passim

Swisher v, Virginia, 506 S.E,2d 768 (Va. 1998)... 1

Tukes v. Dugger, 911 F.2d 508 (11th Cir. 1990),

cert. dexied, 502 U.S. 898 (1991) 13

United States-v. Barnett, 989 F.2d 546 (1993),

amended (Apr. 7, 1998), amended (1st Cir.

Apr. 16, 1993), cert. denied, 510 U.S. 850

RA ES SPOS: MENS Nhe RO 18, 16

United States v. Blakeney, 942 F.2d 1001 (6th

Cir.), cert. denied, 506 U.S. 990 (1992) ............. 13

United States v. Calandra, 414 U.S. 888 (1974)... 14

United States v. Chaidez, 906 F.2d 377 (8th Cir.

1990) 13

United States v. Chan-Jimenez, 125 F.8d 1824 (9th

Cir. 1997) .... 16

United States v. Duran, 957 F.2d 499 (7th Cir.

en 1s eC STRESS eee 12

United States v. Fernandez, 18 F.3d 874 (10th Cir.

) EIRENE SE eR a cs 11

United States v. Garfio-Chavez, 162 F.3d 1165,

1998 WL 416815 (8th Cir. 1998) : 15

United States v. Kozinski, 16 F.8d 795 (7th Cir.

GS RS AE Be Ae ae eee BAS Se 16

United States v. Mendenhall, 446 U.S. 544 (1980).. 13

United States v. Riley, 968 F.2d 422 (5th Cir.),

cert. denied, 506 U.S. 990 (1992) ......002..22.00. 13

United States v. Ross, No. 91-5151, 1992 U.S.

App. LEXIS 1818 (4th Cir. Feb. 4, 1992)........ 13, 16

TABLE OF AUTHORITIES—Continued

‘Page

United States v. Sanchez, 685 F.2d 47 (2d Cir.

1980) ) 16

United States v. Watson, 428 U.S. 411 (1976).......- passim

Vale v. Louisiana, 399 U.S. 80 (1970) 7

CONSTITUTIONAL PROVISIONS INVOLVED

U.S. Const. amend. IV . passim

U.S. Const. amend. XIV ; passim

STATUTE

28 U.S.C. § 1257(a) (1994) 2

In Tae. |

Supreme Court of the United States

* OCTOBER TERM, 1998 . .

No.

BoBBY WAYNE SWISHER,

. Petitioner,

COMMONWEALTH OF VIRGINIA,

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of Virginia

PETITION FOR WRIT OF CERTIORARI

Petitioner Bobby Wayne Swisher respectfully petitions

the Court for a writ of certiorari to review the decision of

the Virginia Supreme Court.

OPINIONS BELOW

The Virginia Supreme Court’s opinion affirming the

conviction and sentence of Petitioner is reported at 506

S.E.2d 763 (Va. 1998) (App. A).1 The Virginia Su-

preme Court's denial of Petitioner’s motion for rehearing

is unreported (App. B). The district court’s oral deci-

sions in response to Petitioner’s suppression motions are

unreported (App. C).

1“App.” refers to the Appendices to this Petition.

JURISDICTION

On October 30, 1997, a jury in the Circuit Court for

Augusta County, Virginia convicted Petitioner of capital

murder and related charges. Petitioner was sentenced to

death on the capital murder conviction. The Virginia

Supreme Court’s opinion affirming Petitioner’s conviction

of capital murder and sentence of death was entered on

November 6, 1998 (App. A). The Virginia Supreme

Court denied the petition for rehearing on January 8,

1999 (App. B). On March 9, 1999, this Court granted

an extension of time for Petitioner to file this petition for

a writ of certiorari until May 7, 1999 (App. D).

This Court has jurisdiction pursuant to 28 U.S.C.

§ 1257(a) (1994).

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the Fourth Amendment of the U.S.

Constitution, which provides in relevant part:

The right of the people to be secure in their per-

sons, houses, papers, and effects, against unreason-

able searches and seizures, shall not be violated, . . .

and the Fourteenth Amendment of the U.S. Constitution,

which provides in relevant part:

[Nor shall any State deprive any person of life,

liberty, or property, without due process of law;....

STATEMENT OF THE CASE

A. Statement Of Facts? os

On February 21, 1997, Dawn Snyder’s body was found

in a field in Stuarts Draft, Virginia (J.A. 906-07). On

2The facts set forth in this section are taken from the Joint

Appendix (“J.A.”) filed with the Virginia Supreme Court.

February 22, two young men alleged that Petitioner, then

twenty years old, had admitted to killing Ms. Snyder (J.A.

1009). At approximately 9:00 p.m. the next day, four

| police officers from the Augusta County Sheriff's Depart-

ment went to Petition’s home to question him (J.A. 411,

520).

Petitioner had been drinking alcohol all day long and

had passed out in his bed (J.A. 491). At 9:15 p.m.,

the officers roused Petitioner from his bed by yelling

his name (J.A. 486). Two officers came in through the

front door to Petitioner’s room, while two others came in

through the back entry (J.A. 412, 520). The deputies

testified that they asked Petitioner to accompany them

back to the station house (J.A. 522). The deputies then

handcuffed Petitioner’s hands behind his back while they

were in the bedroom, and led him to the patrol car (J.A.

416, 522). The officers claimed that they informed Peti-

tioner that he was not under arrest and that the hand-

cuffs were necessary as a “precautionary measure” (J.A.

412).

One of the officers noticed Petitioner’s coat lying on a

piece of furniture, and suggested that Petitioner take the

jacket with him because it was cool outside (J.A. 455-

56). The officer then handed Petitioner his jacket so he

could wear it to the police station (J.A. 456).

Upon reaching the police station at approximately

10:15 p.m., Petitioner was taken to a small conference

room and questioned by three police officers (J.A. 418).

This interrogation lasted almost two hours or until shortly

after midnight (J.A. 420). Petitioner was not informed

of his Miranda rights throughout this two-hour interroga-

tion (J.A. 420). |

At one point during the questioning, Petitioner’s mother

called into the station (J.A. 414). Petitioner asked. to

speak with her, but was told he had to wait until the

officers finished their interrogation (J.A. 414). One in-

vestigator testified that he warned Petitioner, “I said, once

we are finished, you will be allowed to call your mother”

(J.A. 421). Petitioner attempted at one point to leave

but at least one officer blocked his path (J.A. 493).5

During the interrogation, officers told Petitioner that

they “wanted to test his coat to see if [they] could deter-

mine whether there was any blood on it or not” (J.A.

456). The officers testified that Petitioner replied “go

ahead,”* and that Petitioner stated he did not “know

anything about what [they were] talking about” (J.A.

456). Forty-five minutes to an hour after Petitioner ar-

rived at the police station, a Luminol * test was performed

on his jacket (J.A. 499, 456). The police then told Peti-

tioner that there was a “positive reaction,” and that they

were going to take possession of the coat and send it to

the forensics laboratory for further testing (J.A. 456-57,

499). The officers testified that, in response, Petitioner

said “he really didn’t care, [the police] could take it”

(J.A. 525).

At the same time the Luminol test was being performed

on the jacket, the officers continued to question Petitioner

and to confront him with other pieces of evidence. They

presented him with burned clothes and a pair of new

tennis shoes that they obtained from a contemporaneous

search of his home (J.A. 524). They photographed

bruises and scratches on his body (J.A. 464). Finally,

he was confronted with the two witnesses to whom he

3 One of the police officers testified that no one blocked Petitioner

from leaving the room (J.A. 498).

Petitioner denies that he was asked for consent to test his

jacket (J.A. 490-91).

aa is a chemical that is used to test for bloodstains (J.A.

had allegedly confessed the day before (J.A. 526, 1004-

05).

Police arrested Petitioner shortly after the confrontation

with the two witnesses, at about 12:05 a.m., Monday,

February 24 (J.A. 526). He was finally given Miranda

warnings after his arrest, almost two hours after arriving

at the police station (J.A. 414-15). At approximately

2:00 a.m., Petitioner was finger-printed and put in a jail

cell (J.A. 440).

B. Constitutional Issues Raised

Prior to trial, Petitioner made a motion to suppress

evidence against him, which included evidence related to

the jacket and the bloodstains on the jacket, arguing that

the evidence was obtained in violation of the Fourth and

Fourteenth Amendments (App. E). The trial court denied

the motion, finding that Petitioner consented to any

searches that took place (App. C at 26a-27a). In so hold-

ing, the court found that the question of whether Peti-

tioner was in custody from the time he was taken from

his uncles’ house to the time police administered Miranda

warnings was not “significant at this point because there

had been no statements taken from him in that interim .. .”

(App: C at 27a). Earlier, the court similarly noted that

whether Petitioner was in custody was “not an issue in

this case because . . . no evidence was obtained during

this period of time .. .” (App. C at 24a).

On appeal to the Virginia Supreme Court, Petitioner

argued that the trial court erred in failing to suppress

evidence against him because it was obtained in violation

of the Fourth and Fourteenth Amendments. (App. F at

34a-35a). The Virginia Supreme Court rejected Petition-

er’s contention, ruling that the evidence in the record sup-

ported the trial court’s ruling that Petitioner’s consent to

any police searches was voluntary (App. A at 13a-14a).

REASONS FOR GRANTING THE WRIT

This case presents an important and timely question

regarding the scope of protection afforded citizens under

the Fourth and Fourteenth Amendments.

L A “KNOWING AND INTELLIGENT WAIVER”

STANDARD SHOULD BE APPLIED TO DETER-

MINE WHETHER CONSENT GIVEN BY AN IN-

DIVIDUAL IN CUSTODY AT A POLICE STATION

IS VOLUNTARY

There is no dispute that Petitioner was handcuffed,

brought to the police station and questioned for over two

hours by three police officers without Miranda warnings,

and that key evidence in this case—his jacket and blood-

stains on the jacket—was obtained from Petitioner during

this period (J.A. 455-56). Further, there is no evidence

that Petitioner was informed that he could refuse consent

or otherwise knew of this right when the police officers

told him they were going to test, and later seize, his jacket

(J.A. 456, 525).

Accordingly, this case squarely presents an important

Fourth Amendment question that has never been ad-

dressed by this Court: whether consent to search can be

voluntary when such consent is given by an individual,

in custody at a police station, who has not given a “know-

ing and intelligent” waiver of his Fourth Amendment

rights. This Court should grant Petitioner’s writ of cer-

tiorari to review this important question of federal law.

A. Schneckloth And Watson Left Open This Important

Question Of Federal Law

The Fourth Amendment guarantees 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. The

Fourth Amendment thus functions “to protect personal

privacy and dignity against unwarranted intrusion by the

State.” Schmerber v. California, 384 U.S. 757, 767

(1966). Based upon these guarantees, this Court has

ruled that, subject to a few specifically established and

well-drawn exceptions, physical evidence shall not be taken

from a person or a person’s home without a justifiable

search warrant issued upon probable cause. Schneckloth

vy, Bustamonte, 412 U.S. 218, 219 (1973); United States

v. Watson, 423 U.S. 411, 427 (1976) (“There is no

more basic constitutional rule in the Fourth Amendment

area than that which makes a warrantless search unreason-

able except in a few ‘jealously and carefully drawn’ excep-

tional circumstances.”) (J. Powell, concurring opinion)

(citing and quoting Jones v. United States, 357 U.S. 493,

499 (1958)).

Pursuant to one of the few established exceptions to

the warrant requirement, the state may conduct a warrant-

less search with the consent of the suspect. Davis v.

United States, 328 U.S. 582 (1946). In particular, this

Court has stated that “‘a search conducted pursuant to a

valid consent is constitutionally permissible.” Schneckloth,

412 USS. at 222; see also Katz v. United States, 389 U.S.

347, 358 (1967); Vale v. Louisiana, 399 U.S. 30, 34-35

(1970). In order for such a search to be valid, however,

the state must show, by a preponderance of the evidence

and through “clear and positive testimony,” that consent

was “freely and voluntarily given” and was not “the prod-

uct of duress or coercion, express or implied.” Schneckloth,

412 U.S. at 222, 226; Bumper v. North Carolina, 391

U.S. 543, 548 (1968).

6The Fourth Amendment is applicable to the states through the

Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643 (1961).

The Schneckloth Court discussed circumstances under

which consent could be considered voluntary. Schneckloth,

412 US. at 226. The Court concluded that, when consent

to search is obtained during the course of a routine traffic

stop on a public highway, the suspect’s knowledge of the

right to refuse consent was not a prerequisite to establish-

ing voluntary consent. Id. at 227. The Court acknowl-

edged that the “on-the-scene” questioning in Schneckloth

was “far removed” from the more troubling circumstances

in which consent to search was purportedly obtained “after

{a suspect] has been placed in custody,” as Petitioner was

in this case.? Id. at 232, 240 n.29. In these circum-

stances, the Court noted, lower courts have been “partic-

ularly sensitive to the heightened possibilities for coer-

cion.” Id. at 240 n.29. The Court further distinguished

the circumstances of the Schneckloth case from the in-

custody interrogation present in our case as follows:

Consent searches . . . normally occur on the high-

way, Or in a person’s home or office, and under

informal and unstructured conditions .... These

situations are a far cry from the structured atmos-

phere of a trial where, assisted by counsel if he

chooses, a defendant is informed of his trial rights.

And, while surely a closer question, these situations

are still immeasurably, far removed from ‘custodial

interrogation’ where, in Miranda v. Arizona, supra,

we found that the Constitution required certain now

familiar warnings as a prerequisite to police inter-

rogation.

Id. at 231-32 (citation omitted).

Therefore, the Schneckloth Court left open the question

of whether a “knowing and intelligent” waiver standard

7As noted above, the trial court as factfinder assumed that

Petitioner was in custody but found that fact to be irrelevant to

Petitioner’s motions to suppress (App. C at 24a, 27a).

would be required to ensure voluntary consent when a

search took place during in-custody interrogations. Id.

In an earlier case, this Court explained that, under such

a standard, the State would have the burden to demon-

strate “an intentional relinquishment or abandonment of

a known right or privilege.” Johnson v. Zerbst, 304 U.S.

458, 464 (1938). The State could fulfill its burden by

establishing that an individual was informed of his right

to refuse consent or otherwise knew of this right before

consent to search was given.®

Three years later, the Watson Court partially answered

this question, finding voluntary consent even though an

in-custody defendant was not informed of his right to

refuse consent. The Court, however, specifically noted

that the defendant’s consent had been “given while on a

public street, not in the confines of the police station.”

Watson, 423 US. at 424. Accordingly, the question re-

mains whether the Fourth Amendment requires a height-

ened standard for consent when a search is conducted on

an in-custody defendant at a police station, as occurred

in this case. Petitioner respectfully contends that the

8It is undisputed that no such evidence was presented in this

case (J.A. 417-18, 456, 525).

® This Court’s decision in Robinette does not resolve this ques-

tion. Ohio v. Robinette, 519 U.S. 38 (1996). In Robinette, a

defendant detained at a traffic stop consented to a search of his car.

Id. at 35. He was not clearly informed that he was “free to go”

before he consented, and was eventually found guilty on various

drug possession charges. Jd. On certiorari, this Court was pre-

sented with the question of “whether the Fourth Amendment re-

quires that a lawfully seized defendant must be advised that he

is ‘free to go’ before his consent to search will be recognized as

voluntary.” Id, The Robinette Court rejected such a rule. Jd. In

doing so, it reiterated Schneckloth’s holding that declined to adopt

a per se rule requiring the prosecution to establish knowledge of

the right to refuse consent as a prerequisite to establishing volun-

tary consent for a search conducted on a seized, rather than an

Constitution mandates such a “knowing and intelligent”

waiver.

B. This Court Has Historically Recognized That There

Is Compulsion Inherent In Police-Dominated Cus-

todial Interrogations And Therefore Constitutional

Safeguards Are Required

As this Court readily acknowledged in Miranda, the

potential for coercion during an in-custody interrogation

at a police station is great. Miranda v. Arizona, 384 U.S.

436 (1966). Such an environment, where examinations

take place in a police-dominated, isolated and often un-

familiar atmosphere, can be both physically and, more

typical in modern practice, psychologically oppressive. Id.

at 447. “(T]he very fact of custodial interrogation exacts

a heavy toll on individual liberty and trades on the weak-

ness of individuals.” Jd. at 455. Without proper safe-

guards, this Court recognized, the process of in-custody

interrogation of persons suspected or accused of a crime

contains inherently compelling pressure which effectively

undermines the individual’s ability to make a free and

rational choice. Id. at 467. |

The interrogation practices and coercive behaviors that

place a defendant in an unfamiliar and intimidating

atmosphere do not vary depending upon whether the de-

fendant claims a violation of his Fourth or Fifth Amend-

ment rights. Thus, the compelling pressures noted in

Miranda necessarily exist regardless of the constitutional

rights in question. Moreover, the Schneckloth Court itself

recognized that constitutional protections during such in-

in-custody, defendant. Jd. at 89 (citing Schneckloth, 412 U.S. at

227). The Robinette Court, however, went no further than the

Schneckloth Court on the facts or the law. Id. Accordingly, the

question of whether the Fourth Amendment requires a heightened

standard for consent when the search in question takes place while

the defendant is in custody at a police station remains unanswered.

terrogations were necessary to protect the fairness of the

trial itself:

That counsel is present when statements are taken

from an individual during interrogation obviously

enhances the integrity of the fact-finding process.

The presence of an attorney, and the warnings de-

livered to the individual, enable the defendant under

otherwise compelling circumstances to tell his story

without fear, effectively, and in a way that eliminates

the evils in the interrogation process.

Schneckloth, 412 U.S. at 240. The Schneckloth Court

thus recognized that the “ ‘evils in the interrogation proc-

ess,’” rather than the constitutional right in question, was

the key factor in determining that a “knowing and intelli-

gent” waiver standard was necessary in the Miranda

case. Id. (citing and quoting Miranda, 384 US. at

466). Likewise, the integrity of the fact-finding process

would suffer greatly if police obtained physical evidence,

rather than statements, from an in-custody defendant in-

terrogated at a police station without the protection of a

“knowing and intelligent” waiver standard. Accordingly,

constitutional safeguards similar to those required in

Miranda to protect Fifth Amendment rights should be

tequired for consent searches conducted on in-custody de-

fendants at the police station to protect equally important

Fourth Amendment rights.”

10The Schneckloth Court also recognized that its rationale for

rejecting Fourth Amendment warnings under the facts of that

case—because “it would be thoroughly impractical to impose on

the normal consent search the detailed requirements of an effective

warning”—did not extend to situations where the defendant was

in custody, as Miranda imposed just such a rule in the Fifth

Amendment context. Schneckloth, 412 U.S. at 231-32.

11 Moreover, some courts already emphasize knowledge of the

right to refuse consent in analyzing all Fourth Amendment con-

sensual searches. See, e.g., United States v. Fernandez, 18 F.3d 874,

‘12

C. The Circuit Courts Have Applied Conflicting Stand-

ards To Determine Whether An Individual Has

Given Voluntary Consent When In Custody At A

Police Station

There has been confusion among the circuit courts re-

garding the proper standard to apply to determine whether

a defendant, in custody at a police station, has given

voluntary consent for a search. Recognizing the “com-

pulsion inherent in custodial surroundings,” Miranda, 384

U.S. at 458, and the additional potential for coercion

when an in-custody search takes place out of the public

eye and in a private location such as a police station, at

least three circuit courts have considered whether the

defendant was in a police station in determining the volun-

tariness of a search. For example, the Seventh Circuit

found that the fact that a young woman was being held

in custody at a police station when her consent to search

was given was a substantial factor to consider in assessing

the overall voluntariness of her consent. United States v.

Duran, 957 F.2d 499, 503 (7th Cir. 1992). The Court

eventually determined that her consent was valid, how-

ever, noting that the potentially coercive effect of her

custody was mitigated by the fact that she was arrested

during the day, without a show of force, was not kept

under close restraint at the police station, and was not

aggressively interrogated. Id. at 503. Similarly, the Fifth

Circuit considered the fact that defendant consented to

a search in the familiar surroundings of his home, rather

than at the police station, in determining that his consent

882 (10th Cir. 1994) (“Although informing a defendant of his right

to refuse consent is not a prerequisite to establishing voluntary

consent, we consider it a factor ‘particularly worth noting.’ ”’)

(citation omitted); Duran, 957 F.2d at 503 (“In light of all the

circumstances—particularly the fact that the police informed Karen

of her right to refuse consent—we cannot say that the district

court’s ruling on this matter was erroneous... .”’).

was voluntary. United States v. Riley, 968 F.2d 422,

426 (5th Cir.), cert. denied, 506 U.S. 990 (1992). Like-

wise, in upholding the trial court’s finding of voluntariness

under the Fourth Amendment, the Sixth Circuit empha-

sized the fact that defendant was not searched at a police

station but rather at his home. United States v. Blakeney,

942 F.2d 1001, 1016 (6th Cir.), cert. denied, 506 US.

990 (1992); cf. United States v. Mendenhall, 446 US.

544, 559 (1980) (emphasizing, in upholding the validity

of consent, that defendant’s presence in the police office

was voluntary); see also United States v. Ross, No. 91-

5151, 1992 U.S. App. LEXIS 1318, at *9 (4th Cir. Feb.

4, 1992) (citing Watson in support of the contention that

a court should consider whether the defendant was in a

public or secluded place when determining the validity of

a Fourth Amendment consensual search); United States

v. Chaidez, 906 F.2d 377, 381 (8th Cir. 1990) (same).

Other circuit courts are silent on the question of

whether the fact that a consent to search takes place in a

police station should be considered in assessing voluntari-

ness under the Fourth Amendment. See, e.g., United

States v. Barnett, 989 F.2d 546, 555 (1993), amended

(Apr. 7, 1993), amended (1st Cir. Apr. 16, 1993), cert.

denied, 510 U.S. 850 (1993); Tukes v. Dugger, 911 F.2d

508, 517 (11th Cir. 1990), cert. denied, 502 U.S. 898

(1991).

It is apparent from this inventory of case law that

lower courts are not applying a uniform standard when

analyzing the constitutionality of a search conducted on

an individual who is in custody at a police station. This

confusion, moreover, does not present merely a theoretical

question in conducting Fourth Amendment searches. With-

out an unambiguous standard to determine free and volun-

tary consent, the rationale behind the Fourth Amendment's

exclusionary rule—to deter police officers from conduct-

ing unconstitutional searches by aren, evidence col-

lected as a result of such actions *—loses any coherence

and the rule itself is made ineffective. Indeed, a rule can

only effectively deter behavior if the standard applied is

unmistakable in the minds of those individuals regulated

by the rule.

As demonstrated above, the standard applied to con-

sensual searches conducted on an individual who is in

custody at a police station is far from clear. Moreover,

this Court has long-recognized the coercion inherent in

police-dominated custodial interrogations, and the need

for constitutional safeguards such as a “knowing and in-

telligent” waiver to protect against the compelling pres-

sures found in such examinations. Miranda, 384 U.S. at

467. This coercion exists regardless of whether the police

are attempting to obtain physical evidence or a statement

from the individual, and thus regardless of whether the

individual is asserting his Fourth or Fifth Amendment

rights. Therefore, this Court should grant Petitioner’s peti-

tion for writ of certiorari to clarify the standard that

should be applied to determine the voluntariness of a

search conducted on an individual who is in custody at a

police station.

12 The rule operates as “a judicially created remedy designed to

safeguard Fourth Amendment rights generally through its deter-

rent effect, rather than a personal constitutional right of the party

aggrieved.” United States v. Calandra, 414 U.S. 338, 348 (1974)

(footnote omitted).

II. IN ANY EVENT, THE TRIAL COURT VIOLATED

THIS COURTS SETTLED FOURTH AMEND-

MENT PRECEDENT BY FAILING TO CONSIDER

WHETHER PETITIONER WAS IN CUSTODY IN

DETERMINING THE VOLUNTARINESS OF HIS

CONSENT

As explained above, police obtained access to Peti-

tioner’s jacket when he was in custody at the police

station. The trial court denied Petitioner’s motion to

suppress the jacket and the bloodstains on the jacket,

finding that he consented to any searches that took

place (App. C at 26a-27a). In so holding, the court

found that the question of whether Petitioner was in cus-

tody from the time he was taken from his uncles’ house

to the time police administered Miranda warnings was not

“significant at this point because there had been no state-

ments taken from him in that interim...” (App. C at 27a).

Earlier, the court similarly noted that whether Petitioner

was in custody was “not an issue in this case because...

no evidence was obtained during this period of time. . .”

(App. C at 24a).

The trial court, however, plainly violated settled Fourth

Amendment precedent by failing to consider the fact

that Petitioner was in custody at the time the alleged

consent to search was given. As noted in Section IA

above, while in Schneckloth and Watson the Court left

open the question of whether knowledge of the right to

refuse consent is a prerequisite to establishing voluntary

consent when a defendant is in custody at a police

station, the Court certainly recognized that whether a

defendant is in custody at all is a significant factor to

consider in determining the overall voluntariness of a con-

sent to search. Schneckloth, 412 U.S. at 241-42; Watson,

423 U.S. at 424. Moreover, many circuit courts have

acknowledged this settled precedent. See, e.g., United

States v. Garfio-Chavez, 162 F.3d 1165, 1998 WL

416815, at *3 (8th Cir. 1998) (noting that the court

should consider factors such as whether the defendant was

in custody or under arrest when consent was given);

United States v. Chan-Jimenez, 125 F.3d 1324, 1327

(9th Cir. 1997) (finding that the factors to be considered

in determining voluntariness include whether the defend-

ant was in custody); United States v. Kozinski, 16 F.3d

795, 810 (7th Cir. 1994) (holding that the factors to be

considered in determining whether defendant consented

to a search included whether he was in custody); Barnett,

989 F.2d at 555 (finding that sensitivity to the heightened

possibility of coercion is appropriate when a defendant’s

consent is obtained when in custody); Ross, 1992 US.

App. LEXIS 1318, at *9 (noting that the court should

consider whether the defendant was arrested or in custody

in assessing the voluntariness of consent); United States

v. Sanchez, 635 F.2d 47, 58 (2d Cir. 1980) (“When

the claimed consent has been given by a person in custody

it is appropriate to be ‘particularly sensitive to the height-

ened possibilities for coercion... .’”). Accordingly,

because the trial court did not consider this important

factor, its denial of Petitioner’s motion to suppress clearly

violated Petitioner’s constitutional rights.

CONCLUSION

In order to settle the important question of federal law

raised by this case, this Court should grant certiorari to

review the decision of the Virginia Supreme Court.

Respectfully submitted,