UND Law Students go Head to Head in Moot Court Competition

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School of Law


Their guns drawn, two federal agents enter a home, its door broken off the hinges and seemingly spattered with blood, to find a man lying unconscious on the floor.

Upon waking up, the man orders the agents out of his home.

But the agents don't go and instead arrest the man after finding a bit of marijuana during a protective sweep of the house.

That was the scenario posed to 20 two-person teams of UND law students, who squared off in a mock-appellate court competition, or moot court, this weekend.

On Monday, the finalists went head-to-head at the federal courthouse in downtown Grand Forks.

The two teams argued their case before federal district Judge Ralph Erickson, federal district Magistrate Charles Miller and Grand Forks attorney and UND professor Bruce Quick, who pelted the competitors with questions about relevant case law and policy implications.

Homeowner's rights

One of the issues before the moot court was, "Were the agents wrong in doing a protective sweep of the house?" A protective sweep is done to ensure that there are no dangerous individuals present who might harm an agent or anyone else present.

"There's arguments to be made on both sides," said Kendra Olson, president of the Moot Court Association at UND, when asked why this particular scenario was chosen.

The agents in the scenario hear a sound down the hall shortly after awakening the homeowner, who has told the agents he is home alone.

The agents also say the man is somewhat incoherent and cannot explain the broken door and the supposed blood spatters. They say he is acting strangely and glancing nervously down the hall. The agents, suspecting there may be someone dangerous down the hall, walk toward the source of the noise to do a protective sweep.

Conor Kennelly, one of the finalists, argued the homeowner expressly ordered the cops out of his home and that the agents violated his Fourth Amendment rights by disobeying him.

Kennelly said if the police had been planning to arrest the homeowner, they could have lawfully done a protective sweep. He argued the police could have left the home once they found nothing unlawful.

"What is at stake here is allowing law enforcement to intrude further into our privacy," Kennelly said.

The other side

Kylie Oversen, another finalist, who argued on behalf of the agents, said the officers were in the right in doing a protective sweep because given the circumstances, they could reasonably suspect their or the man's safety was at risk.

She cited reasons such as the door swinging off its hinges, the broken glass around the door, the apparent blood spatters, the location of the home in an area of high drug crime, the man behaving strangely and the noise coming from down the hall.

Oversen argued that given the circumstances, the officers were justified in investigating the source of the noise down the hall — which ended up being a cat.

The other question: "Were the agents justified in searching the container they found down the hall and seizing the marijuana inside?"

Officers are allowed to seize something without a warrant under an exception known as the "plain view doctrine." If something illegal is in plain view or essentially in plain view and if the officer comes across it in a place he or she has a right to be, the item may be seized.

The agents in the scenario saw a container commonly used to store drugs, opened it and found the marijuana.

Winners named

Andrew Smith argued on behalf of the homeowner that the container was sealed and that it was in that way private. He also argued that the marijuana was not essentially in plain view because of the distinctive container as those containers can be used to store a number of different — and legal — things.

Smith warned the panel of judges against setting a legal precedent that would allow "overzealous officers" to intrude on others' privacy.

Finally Nick Christensen, who argued on behalf of the officers, asked the judges to "place yourself in the shoes of the officers."

He argued that with his 20-plus years of experience in the Drug Enforcement Agency, the agent was so familiar with that specific container that the marijuana inside was essentially in plain view.

"The container announces its contents" to him, Christensen said.

The judges ended up ruling in favor of Oversen and Christensen, with the judges saying how "impressed" they were with the finalists' preparedness.

"Each of you did a better job than I would have done in law school," Erickson said.