A Memorandum To Client On The Merits Of An Appeal

A Memorandum to Client on the Merits of an Appeal

Preliminary Statement

Mr. Phillip Smoker, the owner of Phil’s Phine Cuisine, Inc., has been convicted of the

criminal offense of violating the New Jersey anti-smoking law as set forth at N.J. Stat. § 26:3D-

62. He has also lost his appeals in the State Court system as well as in the United States District

Court, and United States Circuit Court of Appeals. He has retained the legal services of Attorney

Clarence Darrow for the purpose of evaluating the merits of an appeal of his conviction to the

United States Supreme Court. This Memorandum is written to assist Attorney Darrow in his

deliberation of that question.

Statement of the Issues to Be Considered

1. Were the actions of the police officer in detaining Mr. Smoker and eliciting his confession

a violation of Phil’s rights not to be compelled to testify against himself and to be

represented by legal counsel as guaranteed by the 5

, 6

, and 14

Amendments to the

United States Constitution?

2. Were the actions of the police officer in searching the restaurant’s office and seizing the

“smoker list” without a search warrant a violation of Phil’s Phine Cuisine, Inc.’s rights

against unlawful search and seizure as guaranteed by the 4

and 14

Amendments to the

United States Constitution?

3. If either set of acts constituted violations of constitutionally protected rights, should the

evidence illegally obtained have been suppressed?

Statement of the Facts

Mr. Phillip Smoker is the sole shareholder and owner of “Phil’s Phine Cuisine, Inc.” an

incorporated restaurant located in Cape May, New Jersey. A police officer, with whom Phil

enjoyed a long and amicable relationship, was told by a disgruntled patron that Phil had a special

“back room” in his restaurant where he permitted smoking which would be in violation of a New

Jersey law against smoking in public places.

Soon thereafter and without prior notice or invitation, the police officer, in full uniform

with visible holstered firearm and stun gun, entered the restaurant and demanded to speak to

Phil. The officer took Phil roughly by his arm into the restaurant’s office and said: “I’m tired of

you flaunting the law Phil, I know you let people smoke in here and you’re not leaving until you

tell me the truth.” Phil replied: “Alright, copper, ya got me, the jig is up.”

The officer, without a warrant or consent, then searched through the business records of the

corporate restaurant and found that Phil kept a special list of patrons under the heading “Smokers

for our Special Section” (hereinafter “smoker list”) which he gave to his staff so they would know

who to permit into the smoking back room. The officer seized this list.

Argument

Statement of the Law

United States Constitution

The 4

Amendment to the United States Constitution states:

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 5

Amendment to the United States Constitution states:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces,

or in the Militia, when in actual service in time of War or public danger; nor shall any person

be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty,

or property, without due process of law; nor shall private property be taken for public use,

without just compensation.

The 6

Amendment to the United States Constitution states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by

an impartial jury of 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 for obtaining witnesses in his favor, and to have the Assistance of Counsel for his

defense.

Section #1 of the 14

Amendment to the United States Constitution states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State wherein they reside. No State shall make or

enforce any law which shall abridge the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life, liberty, or property, without due process

of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Statutory Law of the State of New Jersey

N.J. Stat. § 26:3D-62(b) states:

b. The Department of Health and Senior Services or the local board of health or the board,

body or officers exercising the functions of the local board of health according to law, upon

written complaint or having reason to suspect that an indoor public place or workplace

covered by the provisions of this act is or may be in violation of the provisions of this act,

shall, by written notification, advise the person having control of the place accordingly and

order appropriate action to be taken. A person receiving that notice who fails or refuses to

comply with the order is subject to a fine of not less than $ 250 for the first offense, $ 500

for the second offense and $ 1,000 for each subsequent offense. In addition to the penalty

provided herein, the court may order immediate compliance with the provisions of this act.

Applicable Case Law

United States v. Leary, 846 F.2d 592 (10

Circuit, 1988)

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)

Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081,1961 U.S. LEXIS 812

State v. O’Loughlin, 270 N.J. Super. 472, 637 A.2d 553 (1994)

State v. Boretsky, 186 N.J. 271, 894 A.2d 659 (2006)

State v. Stott, 171 N.J. 343, 794 A.2d 120 (2002)

State v. Selzner, 257 N.J. Super. 219, 608 A.2d 386 (1992)

Discussion

Issue #1 – Possible violation of Mr. Smoker’s

, 6

, and 14

Constitutional Rights

The first issue considers whether Mr. Smoker was unlawfully detained and whether that

detention lead to a violation of his federal Constitutional rights as embodied in the 5

, 6

and

Amendments which should result in the exclusion and suppression of Mr. Smoker’s alleged

confession.

In State v. O’Loughlin, 270 N.J. Super. 472, 637 A.2d 553 (1994), the New Jersey

Superior Court, in considering when a detention becomes custodial, stated in part:

In State v. Pierson, 223 N.J. Super. 62, 66-67, 537 A.2d 1340 (1988), we

concluded: Miranda warnings are a prerequisite to custodial interrogation, which is

"questioning initiated by law enforcement officers after a person has been taken into custody

or otherwise deprived of his freedom of action in any significant way." Miranda v. Arizona,

384 U.S. 436, at 444; 86 S.Ct. 1602, at 1612; 16 L.Ed.2d 694 (1966).

In State v. Boretsky, supra, the New Jersey Supreme Court, in considering when the protections

of Miranda v. Arizona, supra, attach to police actions stated in part:

Indeed, the desire to protect the right against self-incrimination motivated the Supreme Court

to craft the constitutional protections imposed by Miranda v. Arizona, 384 U.S. 436, 457-

58, 86 S. Ct. 1602, 1618-19, 16 L. Ed. 2d 694, 713-14 (1966). The Court explicitly stated

that it was concerned about the relationship between custodial interrogation--with its

"inherently compelling pressures"--and the effect that the resulting atmosphere of

intimidation has on a suspect's free will. Id. at 456-57, 467, 86 S. Ct. at 1618-19, 1624, 16

L. Ed. 2d at 712-14, 719. The purpose of the Miranda warnings, enforced through the

suppression remedy, then, "is not to mold police conduct for its own sake," but "to dissipate

the compulsion inherent in custodial interrogation." Moran v. Burbine, 475 U.S. 412, 424-

25, 106 S. Ct. 1135, 1142-43, 89 L. Ed. 2d 410, 422-24 (1986).

The facts of this case show that the officer took Mr. Smoker roughly by his arm into the

restaurant’s office and said: “I know you let people smoke in here and you’re not leaving until you

tell me the truth.” It would not be unreasonable for a court to find this language to be

“compelling,” “intimidating,” and stated within a “custodial” setting. As such, the officer should

have advised Mr. Smoker of his so-called Miranda rights.

Of course, there is the possibility the government could argue that because of the amicable

many year relationship between Mr. Smoker and the officer, their encounter on the day in question

was not intimidating or threatening and thus did not cause Mr. Smoker to believe his freedom of

movement had been restrained. However, if the court determined that so-called Miranda rights

should have been given, would the exclusion and suppression of Mr. Smoker’s alleged confession

be the proper remedy? In, State v. Stott, supra, the New Jersey Supreme Court considered the

remedy of suppression of statements taken in violation of the 5

and 6

Amendments, and stated

in part:

This Court also has explained that "[t]he critical determinant of custody is whether there has

been a significant deprivation of the suspect's freedom of action based on the objective

circumstances, including the time and place of the interrogation, the status of the interrogator,

and the status of the suspect[.]" State v. P.Z., 152 N.J. 86, 103, 703 A.2d 901 (1997). Another

factor is whether a suspect knew that he or she was a focus of the police

investigation. Stansbury v.

California, 511 U.S. 318, 325, 114 S. Ct. 1526, 1530, 128 L. Ed. 2d 293, 300 (1994); State

v. Pearson, 318 N.J. Super. 123, 134, 723 A.2d 84 (App.Div.1999).

In applying those tenets we hold that, given the absence of Miranda warnings, defendant's

statements must be suppressed. The Court notes that there is no serious dispute that the police

"interrogated" defendant during the course of his interviews.

Pursuant to Stott, supra, it would seem reasonable for the court to find constitutional

violations and to impose the so-called “Exclusionary Rule” resultin in gthe suppression of Mr.

Smoker’s alleged confession.

Issue #2 – Search and Seizure of a Corporate Record - “The Smoker List”

The federal constitutional protections in contention within this Issue are those arising out

of the 4

and 14

Amendments. The question is whether the police officer violated the

constitutional rights of the corporation, Phil’s Phine Cuisine, Inc., by seizing its corporately owned

“smoker list.” In State v. Selzner, supra, the New Jersey Superior Court, in considering the effect

of the seizure of business records without a warrant, stated in part:

The State concedes that Sergeant Kontakis was mistakenly given defendants' telephone

billing records without having a warrant. But, if those records were obtained pursuant to an

improper search or seizure, the records, as well as any information flowing from their

acquisition, would be subject to suppression as fruit of unlawful police conduct. Wong Sun

v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, 445 (1963) (evidence

arising by exploitation of illegality is suppressed; evidence obtained by means sufficiently

distinguishable from the primary illegality may be admitted); State v. Johnson, 118 N.J.

639, 652, 573 A.2d 909 (1990).

In United States v. Leary, supra, the Circuit Court, when considering whether a corporation can

defend itself against unreasonable search and seizure, stated in part:

There is no doubt that a corporate officer or employee may assert a reasonable or

legitimate expectation of privacy in his corporate office. Cf. Mancusi v. DeForte, 392

U.S. 364, 369, 20 L. Ed. 2d 1154, 88 S. Ct. 2120 (1968) ("It has long been settled that

one has standing to object to a search of his office, as well as of his home."); United

States v. Lefkowitz, 464 F. Supp. 227, 230 (C.D. Cal. 1979) (corporate officers had

sufficient privacy interest in corporate office suite), aff'd, 618 F.2d 1313 (9th

Cir.), cert. denied, 449 U.S. 824, 66 L. Ed. 2d 27, 101 S. Ct. 86 (1980); see also 4 W.

LaFave, Search and Seizure § 11.3(d) (2d ed. 1987) [hereinafter LaFave]. Similarly, "it

seems clear that a corporate defendant has standing with respect to searches of

corporate premises and seizure of corporate records. . . . " Id. at 316. See G.M. Leasing

Corp. v. United States, 429 U.S. 338, 353, 50 L. Ed. 2d 530, 97 S. Ct. 619

(1977); Auster Oil & Gas, Inc. v. Stream, 835 F.2d 597 (5th Cir. 1988). In addition,

except in rare circumstances, a warrant is as necessary to support a search of

commercial premises as private premises. See Blackie's House of Beef, Inc. v.

Castillo, 212 U.S. App. D.C. 327, 659 F.2d 1211, 1216 n.5 (D.C. Cir. 1981)

(citing Marshall v. Barlow's, Inc., 436 U.S. 307, 56 L. Ed. 2d 305, 98 S. Ct. 1816

(1978)), cert. denied, 455 U.S. 940, 71 L. Ed. 2d 651, 102 S. Ct. 1432 (1982).

An application of the tenets espoused in Selzner, supra, and Leary, supra, would appear

to lead to the conclusion that Phil’s Phine Cuisine, Inc., had the right to invoke the protections of

the 4

and 14

Amendments regarding the warrantless search and seizure of the “smoker list,”

which would have resulted in its exclusion and suppression.

Issue #3 – Exclusionary Rule

The final question is whether the application of the so-called “Exclusionary Rule” would

be the proper remedy for the Officer’s illegal interrogation of Mr. Smoker and seizure of the

corporate “smoker list.” In Mapp v. Ohio, supra, Justice Clark of the Supreme Court of the United

States, when delivering the Opinion of the Court, stated in part:

Since the Fourth Amendment's right of privacy has been declared enforceable against the

States through the Due Process Clause of the Fourteenth, it is enforceable against them by

the same sanction of exclusion as is used against the Federal Government. Were it otherwise,

then, just as without the Weeks rule the assurance against unreasonable federal searches and

seizures would be "a form of words," valueless and undeserving of mention in a perpetual

charter of inestimable human liberties, so too, without that rule, the freedom from state

invasions of privacy would be so ephemeral and so neatly severed from its conceptual nexus

with the freedom from all brutish means of coercing evidence as not to merit this Court's

high regard as a freedom "implicit in the concept of ordered liberty."

Predicated on the strength of the pronouncements in Mapp, supra, the judicial remedy of

the “Exclusionary Rule” and its resulting suppression of the evidence unconstitutionally seized

would seem to be the remedy which should have been applied by the trial court.

Conclusion

Predicated on the applicable principles of law, and their reasonable application to the facts

at issue, the United States Supreme Court could well determine that Phil’s rights under the 4

, 5

, and 14

Amendments to the United States Constitution, as well as the corporation’s rights

under the 4

and 14

Amendments were violated by the conduct of the officer, and the fruits of

those unlawful acts, including the incriminatory statements made by Phil, and the “smoker list” of

the corporation should have been suppressed.

Respectfully submitted.

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