Forrest Boone (’16) filed an amicus brief and argued in support of the appellant before the U. S. Court of Appeals for the Armed Forces during oral argument, heard at the Law School.
United States v. Calyx E. Harrell was heard by a panel of five circuit court judges appointed for 15-year terms by the President of the United States with the advice and consent of the U.S. Senate. The case involves the appeal of a U.S. Air Force officer who contends evidence obtained from a “dog-sniff” and police search of her vehicle was obtained in violation of the Fourth Amendment and should have been suppressed. Harrell was found guilty of possession of marijuana and drug paraphernalia.
The hearing was part of the court’s judicial outreach program. The court holds arguments at law schools, military bases and other public facilities as part of Project Outreach, a program developed to demonstrate the operation of a federal court of appeals and the military criminal justice system.
Before the hearing, Boone submitted a 15-page amicus curiae, or friend of the court, brief he developed in Cameron Fogle’s Litigation Drafting: Military Court of Appeals course. As amicus, Boone was not a party to the case, but he offered information that could assist the court as it makes its final decision. Chief Judge Charles E. Erdmann described the brief as “very impressive” shortly after the hearing ended.
“This is a case where the government physically occupied private property for the purpose of gaining information,” Boone argued. “Overruling the lower court here does not require an extension of the law, rather the precedent of the Supreme Court mandates it.”
During the 10-minute presentation, Boone argued the trial court made two fundamental errors. The court ignored testimony and a video regarding the dog’s trespass, and it applied the wrong test to determine whether police conducted a search.
Boone argued the lower court was incorrect and should have suppressed the evidence as a violation of the Fourth Amendment because the case falls within the overlap of two U.S. Supreme Court cases: United States v. Jones and Florida v. Jardines.
“In Jones, the Supreme Court held that a mere trespass onto the exterior of a vehicle constituted a search within the meaning of the Fourth Amendment, and in Jardines, the court applied that same trespass rationale to a dog sniff even when it could be said that that dog was pursuing an odor, attempting to find its source.”
When Judge Scott W. Stucky said he was having trouble following the argument about the whether the dog was acting in accordance with its training, Boone clarified his stance.
“Your honor, the point is that the officer didn’t make any action in response to the change in breathing,” he said. “The dog can’t have probable cause in his mind. Probable cause needs to be formed in the mind of the officer, which wasn’t present based on the breathing. The indication of this dog required the squaring off and the sitting, which didn’t occur until after the physical intrusion either onto or into the vehicle.”
Fogle and law students Jeremy Dalrymple (’17), Maurice FitzGerald (’16), Julie Munns (’16) and Gary Rowe (’16) contributed to the brief and served as practice judges for the oral argument. Each student wrote a full brief as part of the class.
“Once I selected Forrest’s brief, the entire class edited it,” Fogle said. “We worked as a team to make it the best product we could make it in order to get it ready for filing.”
Working with the students in the class also helped Boone shape the argument. “There are some of the arguments I made that people didn’t agree with, but their counter arguments helped me make my argument stronger,” he said.
Hosting the court allows the Law School to show it is producing some of the best students, legal minds and oral advocates in the country.
“Within a week of filing the amicus curiae brief, the government saw fit to file a response, which often doesn’t happen,” Fogle said. “He was writing at a level that was as good, if not better, than what would be expected from a practicing attorney.”
Boone recently accepted a position as an associate at Williams Gautier, PA in Tallahassee, Florida, where he will practice civil litigation. He said he hopes the experience will give his new colleagues confidence in him and that they may tap him for future appellate arguments.
“It’s extremely valuable to say that you’ve argued before a federal appeals court in an actual case,” Boone said. “Getting that experience prior to entering practice is a big leg up and puts me ahead of a lot of people in this stage of my career.”
