Midterm Exam- Legal Argumentation & Debate 04-1-00174

STATEMENT OF FACTS
On June 12, 2011, defendant went to Kulango Mental Asylum (KMA) to visit his brother. Defendant had to pass a 3x5 sign telling him that drugs, contraband and weapons are prohibited inside and visitors will be searched. It was determined based on KMA records that

defendant was in the approved list, and had visited his brother 7 times in the last 12 months. Defendant was then given a printout visit authorization which carried a warning that all persons entering the facility will be subject to search and will be arrested and prosecuted if caught attempting to smuggle narcotic contraband or any weapon.

Defendant then walked through the metal detector station to the male detector to the male shakedown area. Corporal Prado, conducted a thorough inspection of defendants mouth and a patdown of defendants entire upper body area. Defendant was told to remove his jacket,

leaving only a T-shirt on his upper body. His watch and ring, pockets, shoes and socks were examined. When Prado felt around defendants waist line, he discovered that defendant was wearing a thin pocketed polyester shorts under his jeans. Defendant objected when he was told to remove the shorts, saying he had a skin condition in his thighs that needed soft cushion, and it is sensitive to the cold. Prado found defendants insistence on wearing the shorts, suspicious.

Prado observed that defendant was wearing both jockey briefs and an athletic supporter underneath. Prado told defendant he was going to pat defendants groin area, which defendant objected. To accommodate

Midterm Exam- Legal Argumentation & Debate 04-1-00174

defendants objection, Prado offered to do only a visual inspection of defendants groin area. Defendant objected again, saying this was

embarrassing. This aroused Prados suspicion even more. Prado then called Officer Julio to be on standby.

It was at this point in time that defendant expressed his desire to terminate the attempt to visit in order to halt the search. Prado, told defendant the search could no longer be stopped because the

attempted entry and search had progressed too far. Prado asked Julio to restrain defendant by holding defendant while Prado was undoing defendants shorts and dropping them to defendants ankles along with defendants jockey underpants and athletic supporter. Prados visual examination of defendants exposed groin area disclosed no contraband. Julio then released defendant. As defendant was pulling up his shorts and undergarments in the manner directed by Prado, Prado ordered

defendant to stop to permit an inspection of the garments and opened the supporters protective cup pocket. He saw a blue balloon with ten baggies of substance later determined to be shabu. Prado placed

defendant under arrest, transported him to the Police Narcotics Unit, and turned over to that unit the baggies of shabu recovered. Prado stated in his report that if had patted down defendant, he would have discovered the contraband.

Midterm Exam- Legal Argumentation & Debate 04-1-00174

ARGUMENTS
Defendant respectfully avers that his rights under the Fourth Amendment searches of and the United States Constitution when against unreasonable forcibly

seizures

were

violated

Corporal

Prado

searched his person despite his objection. The evidence derived from such unreasonable search and seizure must be suppressed as "fruit of the poisonous tree." I. There was no implied consent to the challenged search under the totality of circumstances.

In the case of Ohio v. Robinette, 519 U.S. 33, the court held that the validity of consent to a search is a question of fact to be determined from all the circumstances. A person's consent to search can be communicated to law enforcement in a variety of ways, including by words, action, or circumstantial evidence showing implied consent. But consent must not be coerced, by explicit or implicit means, by implied threat or covert force. The voluntariness of a person's

consent is also a question of fact that is determined by analyzing all of the circumstances of a particular situation.

Generally, an implied consent to be searched exists in a closed penal institution because group of persons subject to a search in the prison is self selected. Only those who choose to go to the

institution will be subject to such searches, the court said in People v. Turnbeaugh to be (1983). Nevertheless, when one 3 although to there enter is an implied a penal

consent

searched

decides

into

Midterm Exam- Legal Argumentation & Debate 04-1-00174

institution, the Hawai'i Supreme Court held in the case of State v. Custodio 62 Hawaii 1, 607 P.2d 1048 (1980) that because a visitor to a prison is free to leave whenever they choose, a search of the visitor is only a condition of entry to the prison.

The defendant was a visitor to the prison, free to leave whenever he so chose. However, in this case when defendant decided to go home he was forcibly restrained. The facts are undisputed. The defendant felt uncomfortable and embarrassed on the way the search was conducted and at the point when Corporal Prado offered to do a visual inspection of defendants groin area, the defendant finally expressed his desire to stop the search. However, Prado did not stop and even asked Julio to restrain defendant while he was forcibly stripping off defendants underwear.

Viewing the totality of the circumstances in this case, Defendant did not give his implied consent to the search. There was clearly no

free and voluntary consent when the Defendant was forcibly restrained and stripped off his clothes, despite the defendants expressed

objection.

His implied consent for the search has already ceased at

the moment he expressed his decision to leave. The search must also stop at this point.

In addition, the court emphasized in the case of State v. Ibarra, 953 S.W.2d 242, that the State has the burden of proving by clear and convincing evidence that the alleged consent is voluntary and free or, in other words, positive, unequivocal, and without coercion.

Midterm Exam- Legal Argumentation & Debate 04-1-00174

II. Prison visitors do not abandon their constitutional rights when

they enter a penitentiary.

Prison visitors do not abandon their constitutional rights when they enter a penitentiary. citizens entering a Society is prepared to recognize that free as visitors, retain a legitimate

prison,

expectation of privacy, even though diminished by the exigencies of prison security. "Those visiting a prison cannot credibly claim to carry with them the full panoply of rights they normally enjoy. But neither may they constitutionally be made to suffer a wholesale loss of rights--nor even one commensurate with that suffered by inmates," the court held in Blackburn v. Snow, 771 F.2d 556 (1985).

The

defendant

in

this

case

had

legitimate

expectation

of

privacy when he entered the prison to visit his brother. It follows that when Prison officers used force to search defendant despite his objection, considering that the latter did not abandon his

constitutional right and still has expectation of privacy, such search done by the officers is unreasonable. III. The implied consent does not include consent to search

defendants groin area.

It has been held time and again, that a visitor may only be subjected to a strip search if the search is supported by reasonable suspicion. In Hunter v. Auger, 672 F.2d at 674-75, the court

implemented a reasonable suspicion standard. The court acknowledged the difficulties of prison management, and encouraged administrators 5

Midterm Exam- Legal Argumentation & Debate 04-1-00174

to employ all reasonable means to constrict the flow of drugs,

weapons, and other contraband into the prison.

Nevertheless, the

court refused to grant prison officials unlimited discretion. Strip searches deeply intrude upon an individuals privacy interest. To perform a strip search, government officials must generally possess a search warrant and demonstrate that there is a clear indication that they will find evidence.

Similarly, in Wood v. Clemmons, 89 F.3d 922, the court refused to justify strip Prison search officials absent must some quantum of individualized giving rise to

suspicion.

articulate

facts

reasonable suspicion to invasively search

visitors. In Daugherty v.

Campbell, 33 F.3d 554, the court also required prison officials to possess reasonable suspicion before strip searching prison visitor.

Clearly, even if defendant gave his implied consent to the search when he entered the prison, such search does not necessarily include the search in the groin area in the absence of reasonable suspicion on the part of the police officer and such consent does not include

consent to be forced to a strip search, restrained and violated. IV. Corporal Prado had no reasonable suspicion, at the time of

Defendants visit, that he would be smuggling contraband into the prison. Prison officials must have reasonable suspicion to require a visitor to consent to an invasive bodily search. The court in Spear v. Sowders, 71 F.3d at 630 noted 6 that visitors residual privacy

Midterm Exam- Legal Argumentation & Debate 04-1-00174

interests require that prison authorities reasonably suspect that

visitor bears contraband before conducting invasive search.

There was no reasonable suspicion to suspect that defendant was smuggling illegal drugs in this case. It is worthy to note that it was even determined based on KMA records, that defendant was in the

approved list and had visited his brother 7 times in the last 12 months. This fact would show that defendant had no history of

smuggling contrabands in the prison. Clearly, there was no reason to suspect the defendant since they had no information or intelligence report that defendant was involved in the drug smuggling incidents in the prison.

The

court

in

Hunter

v.

Auger,

as

formerly

stated

implemented a reasonable suspicion standard when it comes to strip searches. To justify the strip search of a particular visitor under the reasonable suspicion facts standard, and prison officials must that point they to are

specific

objective

rational

inferences

entitled to draw from those facts in light of their experience. In this case, the Drug Enforcement Task Forces report on the

proliferation of drug-related problems in the prison does not satisfy the reasonable suspicion standard to suspect that defendant would be smuggling contraband into the prison.

The

protests

and

objections

by

the

defendant

when

he

was

uncomfortable on the method of search undertaken, only gave rise to a hunch that he may be guilty but does not give rise to reasonable

Midterm Exam- Legal Argumentation & Debate 04-1-00174

suspicion. As held in United States v. Fuentes, mere refusal to

consent to a stop or search does not give rise to reasonable suspicion or probable cause.

Hence, the moment defendant expressed his desire to terminate his attempt to visit, he should have been allowed to leave. V. Consent to a search may be withdrawn after the search has

commenced but before reasonable suspicion arises.

Once

consent

to

search

is

given

an

individual

may

withdraw

consent with an unequivocal act or statement of withdrawal. Consent may be withdrawn by statements, actions, or a combination of

statements and actions. In United States v. Bily, the court found the statements, Thats enough, I want you to stop, was a revocation of consent.

During the course of a search an officer may develop reasonable suspicion or probable cause, once this has been developed the

individual loses their right to revoke consent. In the case of United States v. Arthur Spriggs, 30 F.3d 132, citing United States v.

Herzbrun, the court ruled that the accused had no constitutional right to revoke his consent to a search of his bag once it entered the X-ray machine and the x-ray inspection yielded suspicious results.

It is worth noting that the court in United States

in United States v. Herzbrun as cited by v. Arthur Spriggs is substantially

different from the case at bar. There was no reasonable suspicion on

Midterm Exam- Legal Argumentation & Debate 04-1-00174

the part of the prison officers in this case, as discussed in the fourth argument of this memorandum. Unlike in United States v.

Herzbrun, the officers already develop reasonable suspicion based on fact that the x-ray inspection yielded suspicious results.

In the case at bar, the defendant clearly withdrew his consent with a statement of withdrawal telling Prado that he was terminating his attempt to visit his brother and an unequivocal act of putting his shorts back on. Such withdrawal occurred before the officer developed a reasonable suspicion that defendant was carrying contrabands. There was no instance where a reasonable suspicion occurred based on

specific and articulable facts. Consequently, the implied consent to the search was validly withdrawn. VI. the The government has no legitimate interest sufficient to justify search after Defendant expressed his desire to terminate his

attempt to visit.

In Delaware v. Prous, 440 U.S. 648(1979), the permissibility of certain law-enforcement practices, is judged by balancing the

intrusion on the individuals Fourth Amendment interests against the promotion of legitimate government interests. It is important to

determing under whether the states interest in keeping contraband out of penal institutions is sufficient to warrant this intrusion and whether the search policy in question is reasonably related in scope to the circumstances which justified the interference in the first place.

Midterm Exam- Legal Argumentation & Debate 04-1-00174

In this case, the government has no legitimate interest anymore sufficient to justify this search when defendant declared that he was terminating his attempt to visit his brother in the penal institution. Although it is duty of the institution to adopt reasonable procedures to insure that drugs are not available to inmates and to conduct a search to perform such duty, this duty must cease when the visitor no longer intends to continue his visit.

CONCLUSION AND/OR PRAYER FOR RELIEF

Based on the foregoing, it is clear that Corporal Prado did not have reasonable suspicion to search defendants groin area and the latter validly withdrew his implied consent of the search.

Therefore, Defendant respectfully prays that the introduction of shabu as evidence be suppressed for it violates his constitutional right against unreasonable search and seizures.

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