1
No. 2014-01
In the
Supreme Court Of The United States
Jamie Lannister, in his official capacity as the Governor of the State
of Harrenhal, et al,
Petitioners,
v.
Ramsay Bolton,
Respondent.
BRIEF FOR PETITIONER
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE FOURTEENTH CIRCUIT
Team 11
QUESTIONS PRESENTED
1.
Whether replacing the constitutionally acceptable sedative sodium thiopental with the
sedative midazolam creates a substantial risk of causing the severe type of lingering pain or
torture required to establish a punishment as cruel and unusual in violation of the Eighth
Amendment.
2.
Whether the defendant had a reasonable expectation of privacy concerning his real-time
and historical cell phone date after the defendant knowingly conveyed this information to a third
party and where a state statute permits law enforcement to request location information from a
communications service provider.
ii TABLE OF CONTENTS
TABLE OF CONTENTS .............................................................................................................iii
TABLE OF AUTHORITIES ........................................................................................................ v
CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED .................................viii
STATEMENT OF THE CASE .................................................................................................... 1
FACTS GIVING RISE TO RESPONDENT’S CHALLENGE OF HARRENHAL’S
EXECUTION PROTOCOL ................................................................................................ 1
FACTS GIVING RISE TO RESPONDENT’S CHALLENGE OF HARRENHAL
POLICE’S USAGE OF LOCATION DATA...................................................................... 2
PROCEDURAL HISTORY ................................................................................................ 3
SUMMARY OF THE ARGUMENT ........................................................................................... 4
ARGUMENT ................................................................................................................................. 5
I.
THE STATE OF HARRENHAL’S RECENT SUBSTITUTION OF
COMPOUNDED MIDAZOLAM FOR SODIUM THIOPENTAL DOES
NOT PRESENT A SUBSTANTIAL RISK OF THE TYPE OF SEVERE
AND LINGERING PAIN OR TORTURE NECESSARY TO QUALIFY AS
CRUEL AND UNUSUAL PUNISHMENT UNDER THE EIGHTH
AMENDMENT......................................................................................................5
A. The Department Of Corrections’ New Execution Procedures Do Not
Create The Substantial Level Of Risk Required To Violate The Eighth
Amendment......................................................................................................5
B. Midazolam’s Sedative As Opposed To Analgesic Effect Does Not Rise To
The Level Of Severe, Lingering Pain Or Torture To Qualify As Cruel
And Unusual Under The Eighth Amendment...............................................8
C. The Lack of Identifying Information On The Source Or Supply Of The
Chemical Compounds Used In Harrenhal’s Amended Lethal Injection
Protocol Does Not Make The Procedure Cruel And Unusual...................10
D. The Lack Of A Readily-Available Alternative For Execution Forces The
Court To Find In Favor Of Petitioner.........................................................11
iii II.
HARRENHAL POLICE’S USE OF RESPONDENT’S LOCATION DATA
DOES NOT VIOLATE THE FOURTH AMENDMENT BECAUSE
RESPONDENT COULD NOT HAVE A REASONABLE EXPECTATION
OF PRIVACY AND THE INFORMATION WAS OBTAINED SOLELY TO
EXECUTE A PROPERLY OBTAINED ARREST WARRANT....................12
A. Respondent Could Not Have Held A Subjective, Reasonable Expectation
Of Privacy Concerning His Location Because He Knowingly Conveyed
That Information To A Third Party............................................................13
i. Conveyance to a Third Party May Diminish An Individual’s Justifiable
Expectation of Privacy.............................................................................13
ii. Respondent Contractually Consented To Disclosing His Location Data
To A Governmental Entity.......................................................................14
iii. Harrenhal Police Did Not Use Special Monitoring Methods To Track
Respondent’s Activity Within The Home, And Used Information Already
Collected By A Third Party......................................................................15
B. Even If Respondent Held A Subjective Expectation of Privacy, Society
Does Not Recognize Such An Expectation As Reasonable..........................16
i. Harrenhal Police Did Not Employ Any Unusual Methods Of
Surveillance...................................................................................................17
ii. Cell Phone Users Understand That Their Location Data Is Collected By A
Third Party....................................................................................................18
C. The Harrenhal Statute Did Not Require Police To Obtain A Search
Warrant Prior To Requesting Respondent’s Location Data......................19
CONCLUSION ............................................................................................................................ 20
iv TABLE OF AUTHORITIES
CASES
PAGES
UNITED STATES SUPREME COURT
American Express co. et. al. v. Italian Colors Restaurant et. al.,
133 S. Ct. 2304 (2013).......................................................................................................14
AT&T Mobility v. Concepcion,
563 U.S. 321 (2011)...........................................................................................................14
Baze v. Rees,
553 U.S. 35 (2008)......................................................................................................passim
Carnival Cruise Lines, Inc. v. Shute,
499 U.S. 585 (1991)...........................................................................................................14
Gregg v. Georgia,
428 U.S. 153 (1976).........................................................................................................5, 9
In re Kemmler,
136 U.S. 436 (1898).............................................................................................................9
Louisiana ex rel. Francis v. Resweber,
329 U.S. 459 (1947).........................................................................................................5, 7
Katz v. United States,
389 U.S. 347 (1967).................................................................................................4, 13, 17
Kyllo v. United States,
533 U.S. 27 (2001).............................................................................................................17
Nelson v. Campbell,
541 U.S. 637 (2004)...........................................................................................................11
Riley v. California,
134 S. Ct. 2473 (2014).......................................................................................................19
Smith v. Maryland,
442 U.S. 735 (1979)...........................................................................................................13
United States v. Jacobsen,
466 U.S. 109 (1984)...........................................................................................................13
United States v. Jones,
132 S.Ct. 945 (2012)..........................................................................................................15
v United States v. Karo,
468 U.S. 705 (1984)...........................................................................................................15
United States v. Miller,
425 U.S. 435 (1976)...........................................................................................................13
Wilkerson v. Utah,
99 U.S. 130 (1879)...............................................................................................................9
UNITED STATES COURT OF APPEALS
Chavez v. Fla. SP Warden,
742 F.3d 1267 (11th Cir. 2014)......................................................................................6, 11
In re Application of the United States of America for Historical Cell Site Data,
724 F.3d 600 (5th Cir. 2013).......................................................................................17, 18
In re Application of United States for an Order Directing a Provider of Elec. Comm’n Serv. to
Disclose Records to the Gov’t,
620 F.3d 304 (3d Cir. 2010).........................................................................................18, 20
In re Lombardi,
741 F.3d 888 (8th Cir. 2014).............................................................................................11
Poland v. Stewart,
117 F.3d 1094 (9th Cir. 1997).............................................................................................7
Sells v. Livingston,
750 F.3d 478 (5th Cir. 2014).............................................................................................10
Whitaker v. Livingston,
732 F.3d 465 (5th Cir. 2013).............................................................................................10
United States v. Davis,
754 F.3d 1205 (11th Cir. 2014).........................................................................................15
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. IV...................................................................................................................12
U.S. Const. amend. VIII...................................................................................................................5
FEDERAL STATUTES
42 U.S.C. § 1983 (2012)..................................................................................................................3
vi 28 U.S.C. § 2201..............................................................................................................................3
28 U.S.C. § 1441 (2012)..................................................................................................................3
28 U.S.C. § 1331 (2012)..................................................................................................................3
STATE STATUTES
Har. Code Ann., § 12-122..............................................................................................................10
Harrenhal Stat. § 397-04 (2011-12).....................................................................................2, 14, 19
SECONDARY SOURCES
“Mobile Technology Fact Sheet”, Pew Center Research Center, available at
http://www.pewinternet.org/fact-sheets/mobile-technology-fact-sheet/ (last visited February 9,
2015). ............................................................................................................................................11
Okla. Dep’t of Pub. Safety, The Execution of Clayton Lockett,
Case Number 14-0189SI, (2014).....................................................................................................7
vii CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED
CONSTITUTIONAL AMENDMENTS
United States Constitution, Amendment IV:
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.
United States Constitution, Amendment VIII:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted
STATE STATUTES
Har. Code Ann., § 12-122:
3. The identity of executioners and other persons who participate or perform ancillary functions
in an execution and any information contained in records that would identify those persons is
confidential and is not subject to disclosure pursuant to any other laws
(a)(1) As used in this subsection, the term “identify information” means any records or
information that reveals a name, residential or business address, residential or business
telephone number, day and month of birth, social security number, or personal qualifications.
(2) The identifying information of any person or entity who participates in or administers the
execution of a death sentence and the identifying information of any person or entity that
manufactures, supplies, compounds, or prescribes the drugs, medical supplies or medical
equipment utilized in the execution of a death sentence shall be confidential and shall not be
subject to disclosure under any other laws or under judicial process. Such information shall be
classified as a confidential state secret.
Harrenhal Stat. § 397-04 (2011-12):
397-04 Required disclosure of customer records. (1) Records Concerning Electronic
Communication Service or Remote Computing Service.
(a) A governmental entity may require a provider of electronic communication service or remote
computing service to disclose a record or other information pertaining to a subscriber to or
customer of such service (not including the contents of communications) only when the
governmental entity—
(i) obtains a warrant issued using the procedures described in these statutes (or, in the case of a
federal court, issued using federal warrant procedures) by a court of competent jurisdiction;
viii (ii) obtains a court order for such disclosure under subsection (2) of this section;
(iii) has the consent of the subscriber or customer to such disclosure;
(iv) submits a formal written request relevant to a law enforcement investigation concerning
telemarketing fraud for the name, address, and place of business of a subscriber or customer of
such provider, which subscriber or customer is engaged in telemarketing; or
(v) seeks information under paragraph (b).
(b) A provider of electronic communication service or remote computing service shall disclose to
a governmental entity the—
(i) name; (ii) address; (iii) local and long distance telephone connection records, or records of
session times and durations; (iv) location records including records that are stored in real time;
(v) length of service (including start date) and types of service utilized; (vi) telephone or
instrument number or other subscriber number or identity, including any temporarily assigned
network address; and (vii) means and source of payment for such service of a subscriber to or
customer of such service when the governmental entity uses any means available under
paragraph (a).
(c) A governmental entity receiving records or information under this subsection is not required
to provide notice to a subscriber or customer.
(2) A governmental entity may require the disclosure by a provider of electronic communication
service of any stored information under
Ch. 397 COMMUNICATIONS
Updated 2011-12 Harrenhal Stats.
subsection (1). A court order for disclosure under subsection (1) may be issued by any court that
is a court of competent jurisdiction and shall issue only if the governmental entity offers specific
and articulable facts showing that there are reasonable grounds to believe that the information
sought is relevant and material to an ongoing criminal investigation. A court issuing an order
pursuant to this section, on a motion made promptly by the service provider, may quash or
modify such order, if the information or records requested are unusually voluminous in nature or
compliance with such order otherwise would cause an undue burden on such pro
ix STATEMENT OF THE CASE
FACTS GIVING RISE TO RESPONDENT’S CHALLENGE OF HARRENHAL’S
EXECUTION PROTOCOL
Respondent, Ramsey Bolton, imprisoned, tortured, dismembered, and murdered at least
fifteen victims over a five-year period. (R. at 20). He was found guilty by a jury of his peers on
fifteen counts of first-degree intentional homicide, and, accordingly, sentenced to death. Id. He
later challenged Harrenhal’s amended lethal injection protocol as cruel and unusual. Id.
Respondent is scheduled for execution on June 1, 2015. Id at 24.
In response to the diminishing marketplace for the chemical compounds needed for their
old lethal injection procedure, Harrenhal adopted a new execution protocol that became effective
January 1, 2013. Id. at 21. The former protocol utilized a three-drug cocktail comprised of: (1)
sodium thiopental to sedate the inmate; (2) pancuronium bromide to stop breathing; and (3)
potassium chloride to induce cardiac arrest. Id. at 22. This discontinued protocol is identical to
the protocol upheld as constitutional in Baze v. Rees, 553 U.S. 35 (2008). Id. In 2011, after the
only U.S. manufacturer of sodium thiopental stopped production, it became increasingly difficult
for states to obtain the drug. Id. at 22-23. Later the European Commission enacted strict
regulations stopping the exportation of drugs for use in lethal injections, making sodium
thiopental nearly impossible to obtain. Id. at 40-41. Other states tried switching to pentobarbital,
but eventually ran into the same supply issues as sodium thiopental. Id. Some states, such as
South Dakota and Oklahoma, had serious complications while using pentobarbital in their lethal
injection protocol, resulting in the botched executions of Eric Robert and Michael Lee Wilson.
Id. at 112-116. As a result of the circumstances mentioned above, Harrenhal decided to substitute
the sedative midazolam for sodium thiopental in their new three-drug injection protocol. Id. at
24. Midazolam is a fast-acting sedative similar to sodium thiopental. Id. at 27. It is used to render
1 patients unconscious, but does not have a reputation for strong analgesic, painkilling, effects. Id.
Harrenhal chose to make the compounding pharmacies, which create their specially designed
drugs, confidential to maintain the viability of the midazolam supply. Id.
FACTS GIVING RISE TO RESPONDENT’S CHALLENGE OF HARRENHAL
POLICE’S USAGE OF LOCATION DATA
Harrenhal police initiated an investigation concerning a serial murder. Id. at 13-14.
Through a tip, the police were able to identify Respondent as the prime suspect for the brutal
killings of fifteen victims from his Internet postings on public forums detailing crimes that had
not been disclosed to the public. Id. at 14. The police obtained a warrant for Respondent’s arrest
but could not execute it because they were unable to locate him. Id. at 14-15.
The Harrenhal statute provides that an electronic communications service provider may
disclose information - excluding content of communications - about a customer to a
governmental entity only if the entity can present at least one of the following: (1) a warrant
issued using relevant warrant procedures; (2) a court order; (3) consent of the subscriber; (4)
submission of a formal written request in connection with an investigation concerning
telemarketing fraud; or (5) if the governmental entity seeks information limited to basic contact
information, location records, length of service, and means of payment. Id. at 10. After ten days
of unsuccessful searching, the police requested six months worth of Respondent’s cell phone
information from his service provider Red Viper Wireless, pursuant to the Harrenhal statute. Id.
at 15-16. Upon his initial subscription with the Red Viper Wireless, Respondent signed a
Customer Agreement that included a disclosure stating that location data, along with other
personally identifiable information, may be subject to release to a governmental entity in
compliance with a valid legal process; including but not limited to warrants, court orders or
2 subpoenas. Id. at 2,7. Three days after obtaining the cell phone location information the police
located Respondent’s hiding place and arrested him. Id. at 15.
PROCEDURAL HISTORY
In November 2013, a jury in Harrenhal Circuit Court convicted Respondent of fifteen
counts of first-degree intentional homicide. Id. at 20. Respondent filed a civil rights complaint,
arguing that Harrenhal’s new execution protocol violates the Eight Amendment and should be
considered as cruel and unusual punishment. Id. at 21. He also contends that Harrenhal’s police
use of his cell phone location data to arrest him violated his rights against unreasonable searches
and seizures under the Fourth Amendment. Id. Respondent sought to enjoin the State from using
its current lethal injection protocol and money damages for his Fourth Amendment challenge, as
well as declaratory relief for both claims. Id.
Pursuant to 42 U.S.C. § 1983 (2012) and 28 U.S.C. § 2201, Respondent originally
brought the action in Harrenhal Circuit Court. Id. In accordance with 28 U.S.C. § 1441 (2012),
the State of Harrenhal removed the case to District Court, which had original jurisdiction to
resolve the federal questions under 28 U.S.C. § 1331 (2012). Id. On November 1, 2013, the
District Court conducted a bench trial and concluded that the impending execution did not create
a substantial risk of severe pain and, therefore, was not unconstitutional. Id. at 22. The District
Court also held that the Harrenhal police’s use of cell phone location data without a warrant was
permissible. Id. At this time, both of Respondent’s requests for relief were denied. Id.
On December 22, 2014, the Court of Appeals for the Fourteenth Circuit reversed the
decision of the District Court, holding that the recent number of failed executions using drugs
from unknown sources demonstrates a risk of severe pain and therefore violated the Eighth
Amendment. Id. at 39-40. The Court of Appeals also reversed the District Court’s decision on
3 the Fourth Amendment issue, finding that Respondent has a reasonable expectation of privacy
with regards to his cell phone location data. Id. at 51.
This Court granted Certiorari jointly as to both issues preserved for appeal. Id. at 61.
SUMMARY OF THE ARGUMENT
I. This Court should reverse the Fourteenth Circuit Court of Appeals and uphold the
Harrenhal lethal injection procedure as constitutional, because the new procedure does not rise to
the level of risk or harm necessary to qualify as cruel and unusual under the Eighth Amendment.
Firstly, although the Eighth Amendment prohibits execution methods that cause a substantial risk
of severe harm, states are not required to avoid any possibility of pain. See Baze v. Rees, 553
U.S. 35 (2008) (noting that a certain amount of pain is inherent in dying). Next, contrary to the
Fourteenth Circuit’s decision, maintaining the confidentiality of the drug providers furthers the
State’s interest and contributes no cruelty to the process. Finally, Respondent’s request to enjoin
his execution cannot be upheld because it would leave Harrenhal with no method of executing its
prisoners due to the lack of a readily available alternative. See id.
II. This Court should also reverse the decision of the Court of Appeals to hold that
Harrenhal police’s use of Respondent’s location data without obtaining a search warrant was
permissible because Respondent did not have a legitimate expectation of privacy concerning his
location. Katz v. United States, 389 U.S. 347 (1967) (Harlan, J., concurring). Furthermore,
society does not accept such an expectation as reasonable. Id. The location data was used solely
to discover Respondent’s geographic location to execute the warrant for his arrest. Respondent
had express notice that his location information would be conveyed to a governmental entity in
order to comply with a valid legal process.
4 ARGUMENT
I.
THE STATE OF HARRENHAL’S RECENT SUBSTITUTION OF
COMPOUNDED MIDAZOLAM FOR SODIUM THIOPENTAL DOES NOT
PRESENT A SUBSTANTIAL RISK OF THE TYPE OF SEVERE AND
LINGERING PAIN OR TORTURE NECESSARY TO QUALIFY AS CRUEL
AND UNUSUAL PUNISHMENT UNDER THE EIGHTH AMENDMENT.
The Eighth Amendment provides: "Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII. It is the
position of this Court that the death penalty is not invariably in violation of the Eighth
Amendment. Gregg v. Georgia, 428 U.S. 153, 169 (1976) (holding that the death penalty is not
unconstitutional per se). As such, it is important to note that the current issue involves neither the
constitutionality nor the morality of either the death penalty or lethal injection per se. The
language of the Eighth Amendment, nearly identical to that of the English Bill of Rights, is
intended to prohibit the “wanton infliction of pain.” Louisiana ex rel. Francis v. Resweber, 329
U.S. 459, 463 (1947) (ruling that a botched execution by electrocution would not automatically
render a second attempt as cruel and unusual). Thus in order to find a punishment in violation of
the Eighth Amendment, it must unnecessarily and wantonly inflict pain, and be grossly
disproportionate to the severity of the crime. Gregg, 428 U.S. at 173. Therefore, the chemical
compound used in the lethal injection protocol in question should not be held as unconstitutional,
because it is used only to reduce the pain and suffering of the inmate.
A. The Department Of Corrections’ New Execution Procedures Do Not Create The
Substantial Level Of Risk Required To Violate The Eighth Amendment.
The cruelty prohibited by the Eighth Amendment is the cruelty involved in the particular
method of execution, not the necessary suffering inherent in any method used to terminate a life.
Resweber 329 U.S. at 464. Any accident that prevents the prompt consummation of the
execution cannot contribute to the cruelty of the method. Id. There must be some intent for
5 unnecessary pain. Id. Therefore, no method of execution is constitutionally required to avoid all
risk of pain. Baze v. Rees, 553 U.S. 35, 47 (2008) (upholding Kentucky’s three drug lethal
injection protocol as constitutional). All that is required is that the procedure does not create a
“substantial risk of serious harm.” Id. at 50.
“[T]o prevail on an Eighth Amendment challenge to a lethal injection protocol, a
condemned inmate must establish "an objectively intolerable risk of harm that prevents prison
officials from pleading that they were subjectively blameless for purposes of the Eighth
Amendment." Chavez v. Fla. SP Warden, 742 F.3d 1267, 1272 (11th Cir. 2014) (quoting Baze,
553 U.S. at 50). In Chavez, the Eleventh Circuit upheld Florida’s three-drug protocol containing
midazolam. See 742 F.3d 1267. In fact, that procedure is nearly identical to Harrenhal’s lethal
injection procedure, consisting of midazolam, vecuronium bromide, and potassium chloride. Id.
at 1269. Petitioner therefore requests this court to adopt the Eleventh Circuit’s opinion on the
issue at hand.
An error in the lethal injection of a different state utilizing a different protocol does not
contribute probative evidence to the risk of harm presented by Harrenhal’s protocol. See Poland
v. Stewart, 117 F.3d 1094, 1105 (9th Cir. 1997) (stating that problems that during executions in
surrounding states “proves nothing about problems using the Arizona protocol.”). The
Fourteenth Circuit Court of Appeals mistakenly relies on the errors made in other state’s
executions to evince an “objectively intolerable risk.” (R. at 50). The Dennis McGuire1 and
Joseph Wood2 executions, Ohio and Arizona respectively, employed a lethal injection protocol
using a single injection of midazolam and hydromorphone. This is significantly different than
Harrenhal’s three-drug lethal injection procedure, which employs rocuronium bromide, to stop
1
2
(R. at 92) (noting that that a single injection of midazolam and hydromorphone may lead to a prolonged death).
Id. at 170 (indicating Arizona uses of a single injection of midazolam and hydromorphone).
6 breathing, and potassium chloride, to induce cardiac arrest. Therefore, since the chemical
compounds were used in different manners, the procedure utilized in those executions cannot be
effectively used to compare any possible risks associated with Harrenhal’s procedure. See id. at
153. The Michael Lee Wilson 3 and Eric Robert 4 executions, Oklahoma and South Dakota
respectively, did both involve complications with a compounded drug, but that drug was
pentobarbital. Harrenhal has never used pentobarbital in executions, there is no evidence to
suggest it ever intends to use it, and, most importantly, it is intrinsically not midazolam.
Therefore the pentobarbital executions cannot be used to evaluate the risk of Harrenhal’s lethal
injection procedures either.
The closest the Fourteenth Circuit came to a logical comparison in lethal injection
protocols was its examination of the execution of Clayton Lockett. Lockett was executed using a
three-drug protocol nearly identical to Harrenhal’s procedure. Okla. Dep’t of Pub. Safety, The
Execution of Clayton Lockett, Case Number 14-0189SI, at 24 (2014). However, there was an
isolated mishap during the course of Oklahoma’s lethal injection of Lockett, which resulted in a
delayed effect. See id. at 14 (“...conclud[ing] the viability of the IV access point was the single
greatest factor that contributed to the difficulty in administering the execution drugs.”). The
protocol itself was not defective. See Id. The medical personnel poorly inserted the intravenous
drip (IV) and as a result, the injected drugs pooled into the surrounding tissue instead of the
blood stream, rendering the intended protocol ineffective. Id. at 19. In Louisiana ex rel. Francis
v. Resweber, this Court declared that an accident does not make an otherwise sound procedure
cruel. See 329 U.S. 459. In that case this Court held that one botched electrocution attempt does
3
4
Id. at 173 (establishing pentobarbital as the compounded drug used).
Id. at 177 (establishing pentobarbital as the compounded drug used).
7 not bar the State from making another attempt. See id. There is no evidence that this same
standard for a failed attempt would not also apply to execution by lethal injection.
Harrenhal’s lethal injection protocol has not demonstrated a substantial risk of severe
pain, nor is there any reliable evidence to suggest it would. There are numerous redundancies to
ensure an accident like the one in execution of Clayton Lockett does not occur. The inmate is
pre-screened with regards to any concerns for establishing or maintaining IV lines. (R. at 152).
On the morning of the execution a “hands-on” examination of the inmate’s veins is made by the
medical team in order to ensure correct placement of the IV. Id. at 153. When placing the IV
lines, a medical team member establishes two viable injection sites5, each to be tested with a
saline injection to ensure free flow through the veins. Id. at 154. In between each injection of the
three-drug cocktail a saline injection is pushed to confirm the injection site is properly placed
and flowing. Id. at 156.
The Fourteenth Circuit appears to have mistaken substantial risk for a lower standard in
holding Harrenhal’s use of midazolam as unconstitutional. There is no evidence of an objectively
intolerable risk that would rise to the substantial level required to rule Harrenhal’s new lethal
injection protocol unconstitutional.
B. Midazolam’s Sedative As Opposed To Analgesic Effect Does Not Rise To The
Level Of Severe, Lingering Pain Or Torture To Qualify As Cruel And Unusual
Under The Eighth Amendment.
There is no legal precedent to establish that the pain and suffering that might occur from
Harrenhal’s lethal injection protocol is substantial enough to violate the Eighth Amendment.
“This Court has never invalidated a State's chosen procedure for carrying out a sentence of death
as the infliction of cruel and unusual punishment.” Baze, 553 U.S. at 48. State legislatures are
5
The Clayton Lockett execution only placed one IV access point. Okla. Dep’t of Pub. Safety, The Execution of
Clayton Lockett, Case Number 14-0189SI, at 17 (2014).
8 given deference when selecting a method of execution. Gregg, 428 U.S. at 175. A chosen
method is presumed valid so long as it is not “cruelly inhumane or disproportionate to the crime
involved.” Id. Any challenge to the constitutionality of a particular method must overcome this
heavy burden. Id.
Cruel and unusual refers to torture and methods of execution, which are unnecessarily
cruel, where pain and suffering are superadded. Wilkerson v. Utah, 99 U.S. 130, 135-136 (1879)
(upholding Utah’s use of firing squad execution as constitutional). Constitutionally a punishment
is considered cruel when it involves “torture or a lingering death.” In re Kemmler, 136 U.S. 436,
447 (1890) (upholding New York’s use of electrocution as constitutional). Execution itself does
not constitute cruelty. Id. There must be an “inhuman and barbarous” element, “something more
than the mere extinguishment of life.” Id. What differentiates a mode of execution as cruel is that
it is designed to induce torture as a way of augmenting a sentence to produce a result worse than
death. Baze, 553 U.S. at 102 (Thomas, J., concurring).
It is not the court’s role to perform a comparative analysis of execution methods to
determine which has the highest chance of producing the least amount of pain. Id. So long as it is
plain that a particular method does not conform to the same “unnecessary cruelty” as burning at
the stake, crucifixion, drawing and quartering, public disembowelment, et cetera, it should be
upheld as constitutional. Id. Such an analysis would require the courts to answer scientific
questions beyond their judicial expertise. Id. at 105. It would encumber the states in neverending litigation amounting to a near ban on death penalty altogether. See id. at 104-105.
The Fourteenth Circuit mistakenly proffered: “It is uncontested that failing a proper dose
of sedative to render the inmate unconscious, there is a substantial, constitutionally unacceptable
risk of suffocation and pain from administration of the other two drugs.” (R. at 42). Such a
9 declaration is not uncontested. If midazolam failed to fully render a patient unconscious, it would
not do so out of Harrenhal’s desire to add pain to the procedure. As a sedative, midazolam’s sole
purpose is to minimize the effect of the pain the other two drugs might cause. This is far from the
definition of cruel and unusual historically held by this Court. It is not Harrenhal’s responsibility
to ensure that no pain is felt during the execution. The requirement that an inmate be completely
unconscious would amount to forcing the State to guarantee a painless form of execution.
It is important to reiterate, as stated in Baze, that this Court has never held a challenged
method of execution to be unconstitutional. 553 U.S. at 58. The use of midazolam as a
replacement of the unavailable sodium thiopental serves no purpose other than to further
Harrenhal’s right to execute its prisoners. Any accidental and unintended pain is well within the
acceptable margin inherently associated with “extinguishing a life.” Therefore, this Court should
not create a new precedent of rejecting individual methods of execution and hold Harrenhal’s
lethal injection protocol as constitutional.
C. The Lack of Identifying Information On The Source Or Supply Of The Chemical
Compounds Used In Harrenhal’s Amended Lethal Injection Protocol Does Not
Make The Procedure Cruel And Unusual.
Har. Code Ann., § 12-122 provides that “the identifying information of any person or
entity that manufactures, supplies, compounds, or prescribes the drugs, medical supplies or
medical equipment utilized in the execution of a death sentence shall be confidential and shall
not be subject to disclosure under any other laws or under judicial process.” (R. at 158). “Such
information shall be classified as a state secret.” Id.
In order to disclose confidential information, there must be some proof, not just
hypothetical a possibility, that the execution process was constitutionally defective. Sells v.
Livingston, 750 F.3d 478, 481 (5th Cir. 2014) (citing Whitaker v. Livingston, 732 F.3d 465, 469
10 (5th Cir. 2013)). The fact that drugs were compounded is not enough to establish an Eighth
Amendment claim, and any order to disclose the confidential information on those grounds
would be a "clear abuse of [judicial] discretion” preventing the State from acquiring the drugs
needed to carry out its lethal injection protocol. In re Lombardi, 741 F.3d 888, 896 (8th Cir.
2014).
The Circuit Courts have upheld the constitutionality of keeping the sources of drugs used
in the State’s lethal injection protocol confidential. It does not make a difference if the inmate
knows where the drug used in the execution is coming from. It neither adds nor detracts from
either the risk or the harm involved in the execution procedure. The State has an important
interest in preserving the confidentiality of the source of the drugs used in its lethal injection
protocol. The availability of the drugs may be compromised their the sources were to be
exposed. This would adversely impact Harrenhal’s ability to execute its prisoners in a timely
fashion. Petitioner therefore requests that this Court adopt the opinions of the Circuit Courts on
this issue.
D. The Lack Of A Readily-Available Alternative For Execution Forces The Court
To Find In Favor Of The State Of Harrenhal.
States hold a significant interest in carrying out death sentences in a timely fashion.
Nelson v. Campbell, 541 U.S. 637, 644 (2004). In order to find a method of execution
unconstitutional, there must be "known and available alternatives" that are "feasible, readily
implemented," and that will "in fact significantly reduce [the] substantial risk of severe pain."
Chavez, 742 F.3d at 1272 (quoting Baze, 553 U.S. at 50, 52, 61).
Respondents have not proffered any alternative means of execution that would satisfy
their claim. They simply wish to enjoin Harrenhal from execution altogether. Such a
11 determination would violate the state’s right to execute its criminals. The Fourteenth Circuit’s
suggestion of not using midazolam would exacerbate the pain and suffering involved immensely.
See (R. at 48). Not only is no suggestion offered, but none appears readily available. The
constitutionally approved sodium thiopental can no longer be purchased by those intending to
use it for execution. Id. at 22-23. If this Court were to find the use of midazolam
unconstitutional, it would create an effective ban on lethal injection per se.
Harrenhal’s amended execution protocol does not create the objectively intolerable,
substantial risk of severe pain required to find an execution method cruel and unusual under the
Eighth Amendment. Even if this Court were to find that a substantial risk was present, it still
must deny Respondent’s request to enjoin the execution, because the state has no implemented,
readily available alternative that it could use to execute its prisoners.
II.
HARRENHAL POLICE’S USE OF RESPONDENT’S LOCATION DATA DOES
NOT VIOLATE THE FOURTH AMENDMENT BECAUSE RESPONDENT
COULD NOT HAVE A REASONABLE EXPECTATION OF PRIVACY AND
THE INFORMATION WAS OBTAINED SOLELY TO EXECUTE A PROPERLY
OBTAINED ARREST WARRANT.
The Fourth Amendment protects citizens from “unreasonable searches” and any warrant
permitting a search can only be issued if probable cause exists. U.S. Const. amend. IV. Harrenhal
police’s acquisition of Respondent’s location data did not violate any reasonable expectation of
privacy Respondent could have legitimately held. Furthermore, the data was only utilized to
execute the arrest warrant, which the police had properly obtained after demonstrating probable
cause. (R. at 14). Respondent had advance notice that his location could be given to police,
diminishing any subjective expectation of privacy he claims to have possessed.
12 A. Respondent Could Not Have Held A Subjective, Reasonable Expectation Of
Privacy Concerning His Location Because He Knowingly Conveyed That
Information To A Third Party.
Fourth Amendment protection can only be invoked to prevent individuals from a search
if there is a reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 360 (1967)
(Harlan, J., concurring).
i. Conveyance to a Third Party May Diminish An Individual’s Justifiable Expectation
of Privacy.
In Smith v. Maryland, this Court determined that the installation of a device at a
telephone company that recorded all dialed phone numbers from a specific telephone did not
constitute a search, and, therefore, did not violate the defendant’s Fourth Amendment right. 442
U.S. 735 (1979). The majority reasoned “all telephone users realize that they must ‘convey’
phone numbers to the telephone company.” Id. at 742. Similarly, Respondent must realize that
any usage of his cell phone would necessarily require transmission to Red Viper Wireless so that
the provider could implement its services. As evidenced by his signing, acceptance, and usage of
Red Viper’s services, Respondent was a party to a contract that included a provision delineating
the circumstances upon which Red Viper Wireless would transfer data to a governmental entity
to comply with a valid legal process, such as a warrant. (R. at 7).
An individual no longer possesses a justifiable expectation of privacy from the
government if his privacy interests have already been disclosed to a private third party and the
government does not further probe beyond the disclosed information. United States v. Jacobsen,
466 U.S. 109, 116 (1984) (finding no Fourth Amendment violation because government agents
performed the same search of materials already subject to third party disclosure); see also United
States v. Miller, 425 U.S. 435, 444 (1976) (finding that the defendant no longer has a reasonable
expectation of privacy after disclosing financial information to his bank). Likewise, Respondent
13 has provided his personal information to Red Viper Wireless. Regardless of what Respondent
actually aimed to preserve as private, it is objectively unreasonable for him to expect that Red
Viper Wireless could provide any services to enable use of his cell phone without storing
personally identifiable data, including geographic location.
ii. Respondent Contractually Consented To Disclosing His Location Data To A
Governmental Entity.
Although the Fourteenth Circuit Court of Appeals was unconvinced as to whether
Respondent understood the contractual provision about his location data, this Court has
consistently upheld contracts of adhesion. See generally, American Express co. et. al. v. Italian
Colors Restaurant et. al., 133 S. Ct. 2304 (2013) (affirming that courts cannot invalidate a
waiver of class arbitration in a contract, even if the costs associated with arbitrating exceeded the
potential amount of recovery); AT&T Mobility v. Concepcion, 563 U.S. 321 (2011) (upholding
class action waivers in arbitration clauses); Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585
(1991) (enforcing boilerplate forum selection clauses in contracts).
Furthermore, under the Harrenhal Statute, a communications provider like Red Viper
Wireless can release its customers’ information to a governmental entity if the customer has
provided consent. (R. at 10). The customer agreement comprehensively outlined what types of
information would be collected from its subscribers, as well as how and why it would be used.
Id. at 3-9. When Respondent signed his contract to benefit from Red Viper Wireless’ cell phone
services, he conveyed his consent to relinquishing his personal information to the government.
In addition to the customer agreement he signed, Respondent also had opportunities to
ask a Red Viper sales representative for further information, or view the agreement on the
provider’s website. Id. at 2-3. It was therefore Respondent’s responsibility to understand Red
Viper Wireless’ terms and conditions when he signed the customer agreement, consented to
14 release of his information, and began to receive cell phone services. Respondent cannot claim to
have any actual reasonable expectation of privacy because he received express notice that the
service provider would potentially disclose his location to the police.
iii. Harrenhal Police Did Not Use Special Monitoring Methods To Track Respondent’s
Activity Within The Home, And Used Information Already Collected By A Third
Party.
Respondent relies on United States v. Jones to assert that police need a warrant before
obtaining location information. 132 S.Ct. 945 (2012). However, a significant distinction between
Jones and the current issue is that the FBI and District of Columbia police monitored the criminal
defendant through a GPS device they had to install on his vehicle. Id. at 949. The Court
unanimously found that affixing a device onto the defendant’s actual property constituted a
search and the police needed to obtain a warrant prior to installing the tracker. Id. at 955. United
States v. Karo further affirmed that the government is prohibited from employing a device
specifically to monitor activity within the home. 468 U.S. 705, 714 (1984). In that case,
government agents attached a beeper onto a can of ether purchased by the defendant, and were
able to monitor his movement within and outside of his house. Id.
The Harrenhal police employed no such unique tracking devices on Respondent or his
property. Although the Eleventh Circuit reasoned in its dicta that government gathering of any
cell site location data violated a defendant’s reasonable expectation of privacy, the facts in that
case are distinguishable because there, the prosecution used location data to connect the
defendant to the alleged crimes. United States v. Davis, 754 F.3d 1205, 1211 (11th Cir. 2014).
Unlike in Respondent’s case, where the location data was used to execute a properly obtained
arrest warrant (i.e. complying with a valid legal process), the government in Davis used the data
to prove the defendant’s involvement without demonstrating probable cause. See id. at 1212.
15 The Harrenhal police were not using the location data to place Respondent at the scene of
the crimes. Rather, they were using the information to execute the arrest warrant, which they had
obtained by proving probable cause. (R. at 30). The police did not install any special monitoring
devices or attach additional surveillance mechanisms onto Respondent’s property. Their
activities were limited to obtaining location data that was already in possession by Red Viper
Wireless in accordance with their normal business activities. Id. at 3-4. Moreover, the police did
not request any additional personally identifiable information from Red Viper Wireless; their
inquiry was limited to information already collected by the company. Id.
The government acted within its scope when requesting location data and did not utilize
the information to obtain additional incriminating evidence against Respondent. Therefore,
Respondent cannot allege any reasonable expectation of privacy for information that was already
knowingly conveyed to a third party.
B. Even If Respondent Held A Subjective Expectation of Privacy, Society Does Not
Recognize Such An Expectation As Reasonable.
As of January 2014, over ninety percent of adults in America own a cell phone, yet only
twenty percent of cell phone owners have disabled the location tracking device feature on their
phones.6 Although the Circuit Court generally stated that many people decline to disclose their
location information, the reality is that most people voluntarily convey that information in order
to receive all the available services from a provider. Even if Respondent was unaware of the
terms specified in his cell phone service agreement, the progression of technology has instilled a
widely held view that wireless providers gather location data in order to provide the most
efficient network services.
6
See “Mobile Technology Fact Sheet”, Pew Center Research Center, available at
http://www.pewinternet.org/fact-sheets/mobile-technology-fact-sheet/ (last visited February 9,
2015).
16 i. Harrenhal Police Did Not Employ Any Unusual Methods Of Surveillance.
In his concurrence in Katz, Justice Harlan established a two-part test to determine
whether there has been a violation of the Fourth Amendment. 389 U.S. at 361 (1967) (Harlan, J.,
concurring). First, as examined above, there must be an actual and subjective expectation of
privacy. Id. Secondly, that expectation must be one that society as a whole accepts as reasonable.
Id. As the Fifth Circuit noted, it is crucial to emphasize that the second prong examines
reasonable expectations of privacy, not merely wishes or desires about keeping their information
private. In re Application of the United States of America for Historical Cell Site Data, 724 F.3d
600, 615 (5th Cir. 2013).
In Kyllo v. United States, this Court held that use of thermal imaging without a warrant
breached the defendant’s Fourth Amendment right, because the device, which was not available
to the general public, was used to monitor activity within the home. 533 U.S. 27, 35 (2001).
Beyond intruding an individual’s homestead, society is not prepared to accept thermal sensory
imaging as a reasonable measure, particularly because the general public was unaware of the
device at issue. Id. at 29. The technology used by the police in Kyllo was uncommon and
unusual, whereas the Harrenhal police merely used information already recorded by Red Viper
Wireless. The Fourteenth Circuit erroneously concluded that because the police determined
Respondent’s location by using his personal property without a warrant, they have violated the
Fourth Amendment. (R. at 57). Location data is not purely private information, because it is
transmitted to a third party - the service provider - in the normal course of business to provide
mobile services to subscribers, including Respondent.
Harrenhal police were careful to limit their request from the service provider to location
data only, avoiding encroachment beyond the scope of executing the arrest warrant. Id. at 15.
17 Furthermore, they did not employ any specialized surveillance methods that were not available to
other parties, which would have violated a reasonable expectation of privacy
ii. Cell Phone Users Understand That Their Location Data Is Collected By A Third
Party.
The Third Circuit held that cell phone subscribers do not voluntarily convey their private
information in exchange for the cellular services they use. In re Application of United States for
an Order Directing a Provider of Elec. Comm’n Serv. to Disclose Records to the Gov’t, 620 F.3d
304, 318 (3d Cir. 2010). That court was persuaded that customers were unaware that their service
providers would record and store their location and that the only information they knowingly
convey is the actual phone number they dial. Id. Given the vast developments shaping current
technology, this assumption is outdated. In contrast, the Fifth Circuit categorized cell site data as
business records and concluded that cell phone users do understand that their location data is
conveyed to the service provider when they initiate a phone call. Historical Cell Site Data, 724
F.3d at 615. Subscribers acknowledge that cell phones require cell tower transmission to
complete the call, just as they comprehend that every number they dial is conveyed to the service
provider to complete the call. See id. at 614. Even if a user did not already understand the exact
technicalities of cell site transmission, given the vast array of billing plans and charges that
reflect a user’s location (e.g. roaming fees), a user would have to know that that the provider
collected their location information. Id.
The Fourteenth Circuit acknowledged how integral modern cell phones are in today’s
society, noting their multiple functions and widespread usage. (R. at 59). Today’s phone
subscribers understand their provider will gather their location data. Given the advancement of
cell phone technology and the services provided, society has demonstrated that it expects the
conveyance of personal information to a third party.
18 C. The Harrenhal Statute Did Not Require Police To Obtain A Search
Warrant Prior To Requesting Respondent’s Location Data.
Under Harrenhal’s statute pertaining to disclosure of customer records, Harrenhal police
did not need a search warrant to obtain Respondent’s location information. (R. at 10). The
Harrenhal police used Respondent’s location data solely to execute the warrant for his arrest,
which was properly obtained. Id. at 14. The information did not expand their evidence against
Respondent or his personal activities; it only served to locate his geographic position. Therefore,
the police’s use did not constitute as a search.
Under Harrenhal law, a governmental entity can obtain information from a cell phone
service provider about a customer. Id. at 10. The statute specifically excludes information that
relates to the contents of communications and limits a governmental entity to pursue only
information that is related to basic subscriber information, which does include location data. Id.
The Harrenhal police obtained the location data from Respondent’s cell phone service provider
and had probable cause that Respondent was a prominent suspect responsible for the death of at
least fifteen victims within the past five years. Id. at 14. Its request for the location data was
merely to find Respondent and arrest him for the killings they strongly suspected him of
committing.
In Riley v. California, the Supreme Court held that the post-arrest searches of defendants’
digital records on their cell phones were unconstitutional. 134 S. Ct. 2473 (2014). The police had
examined the contents of the cell phones, which included call logs and digital media, and led the
authorities to expand their search and obtain more evidence against the defendants. Id at 2482.
When Harrenhal police requested information from Red Viper Wireless, they specifically
limited their inquiry to location data to determine Respondent’s location and execute the warrant
for his arrest. (R. at 14-15). They acted in accordance with the Harrenhal statute, which did not
19 require them to obtain a warrant or a court order prior to requesting the information. Id. at 10.
Furthermore, although the information led the police to find Respondent at his home, it only
confirmed his whereabouts. Id. at 17. Such information falls under the scope of visual
surveillance in public areas, the use of which is permissible. In re Application of United States
for an Order Directing a Provider of Elec. Comm’n Serv. to Disclose Records to the Gov’t, 620
F.3d 304, 318 (3d Cir. 2010). Although the Fourteenth Circuit scrutinizes the ability for
companies to gather and market personal information, any protective measures must be
addressed by the legislature and not by the Court. (R. at 58).
When Red Viper Wireless conveyed Respondent’s location data to the police, it acted in
accordance with the contractual agreement provided to and signed by Respondent. Id. at 7. The
police then used the information, which did not include any other personally identifiable
information, for the sole purpose of executing the legally obtained arrest warrant. Respondent
has failed to demonstrate that he had a reasonable expectation of privacy regarding his location
data and therefore, the Harrenhal police acted permissibly when they located Respondent using
the information he willingly conveyed and consented to his service provider.
CONCLUSION
For the foregoing reasons, this Court must reverse the decision of the Court of Appeals
for the Fourteenth Circuit.
Respectfully Submitted,
Team 11
20