Does a police search violate the Fourth Amendment’s prohibition of unreasonable searches and seizures if it’s unclear who has the authority to consent to a search of a shared living space? And if a law’s text employs arcane language lost on a layperson, should a violator be held liable?

These questions were at the core of the 43rd annual Orison S. Marden Moot Court Competition’s final argument of the fictitious case David Fallsbauer v. United States. Judge Dennis Jacobs ’73 of the US Court of Appeals for the Second Circuit, Judge Brett Kavanaugh of the US Court of Appeals for the District of Columbia Circuit, and Judge Michelle Friedland of the US Court of Appeals for the Ninth Circuit presided as the four NYU Law student finalists tackled the moot problem prepared by Michael Tracht ’16 and Tiana Voegelin ’16.

On behalf of the petitioner, Fellsbauer, Billy Freeland ’15 and Stephen Tensmeyer ’15 argued the issues of the consent to the search and the sufficiency of the evidence, respectively, while Andre Brewster ’15 and Sean Stefanik ’16 argued the same respective issues for the government. 

The biggest laugh of the proceedings resulted from an exchange between Jacobs and Freeland. The judge asked why the officers could not have reasonably assumed that the shoebox in which Fallsbauer had allegedly kept an illicit substance might also have been used by his mother, who consented to the search of their shared apartment. For instance, the judge suggested, the mother could have kept her bracelets in the box—or even her teeth. “Respectfully,” replied Freeland, not skipping a beat, “regardless of whether her teeth are something that may or may not go in the shoebox, we don’t think that argument would have any bite.”

While the Best Oralist honor went to Stefanik, each of the judges praised the entire group of participants. “You were conversational,” said Kavanaugh. “You knew the record cold. You knew the case law cold. You knew the footnotes cold…. Very lucid, very knowledgeable, very on the ball, very strong oral advocacy by all four of you.”

Posted April 17, 2015