___________________________________________________________________________

___________________________________________________________________________

IN THE
SUPREME COURT OF THE UNITED STATES
September Term, 2012
No.: 761-2012

________________________________________________________________________

UNITED STATES OF AMERICA

Petitioner,
-againstCLYDE BARROW
Respondent.

________________________________________________________________________

BRIEF FOR THE RESPONDENT, CLYDE BARROW

________________________________________________________________________

TABLE OF CONTENTS
0

TABLE OF AUTHORITIES.....................2
CONSTITUTIONAL PROVISIONS ...3
QUESTION(S) PRESENTED...4
STATEMENT OF THE CASE..5
SUMMARY OF THE ARGUMENT9
ARGUMENT...12
POINT I
A SUMMERS-LIKE DETENTION WAS IMPROPER IN THIS CASE BECAUSE
BARROW WAS DETAINED OUTSIDE THE IMMEDIATE VICINITY OF THE
SEARCH......12
A. The Intrusion Into Barrows Liberties Caused By His Detention Was as Intrusive
as That of a Traditional Arrest Because the Detention Occurred on a Public Road a
Mile From the Vicinity Being Searched.14
B. Even if the Detention of Barrow Was So Much Less Severe than a Traditional
Arrest, the Intrusiveness of the Detention Greatly Outweighed its Justifications..18
1. No law enforcement interests were furthered by Barrows detention a
mile away from the Apartment being searched because he was unaware of
the search warrant being executed...19
2. If this Court properly abandons the bright line rule set forth in
Summers, and decides this case according to its specific facts, it is obvious
that there were no articulable facts that justified Barrows detention..24
POINT II
MR. BARROW RECEIVED CONSTITUTIONALLY INSUFFICIENT ASSISTANCE OF
COUNSEL BECAUSE HIS TRIAL WAS TAINTED BY AN IMPERMISSIBLE CONFLICT
OF INTEREST BETWEEN HIMSELF AND HIS ATTORNEYS....................26
CONCLUSION34
TABLE OF AUTHORITIES
1

Cases
Cuyler v. Sullivan, 446 U.S. 335 (1980).26,27
Dunaway v. New York, 442 U.S. 200 (1979)...12,14,15,16
Michigan v. Summers, 452 U.S. 692 (1981).....12,13,14,15,17,18,19,20,21,22,24
Mickens v. Taylor, 122 S.Ct. 1237 (2002).27,28
Rubin v. Gee, 292 F.3d 396 (4th Cir. 2002)..26,27,28,29,30,31,32
Strickland v. Washington, 466 U.S. 668 (1984)26,27
Triana v. United States, 205 F.3d 36 (2d Cir. 2000)...32,33
United States v. Boyd, 696 F.2d 63 (8th Cir. 1982)..12,14,15
United States v. Bullock, 632 F.3d 1004 (7th Cir. 2011)...21,22
United States v. Cavazos, 288 F.3d 706 (5th Cir. 2002).25
United States v. Cochran, 939 F.2d 337 (6th Cir. 1991)17,18,23,24,25,26
United States v. Edwards, 103 F.3d 90 (10th Cir. 1996).12,13,20,21,23
United States v. Sherrill, 27 F.3d 344 (8th Cir. 1984)12,13,14,15,20,21
United States v. Tatum, 943 F.2d 370 (4th Cir. 1991).28
Constitutional Provisions
U.S. Const. amend. IV....12,15
U.S. Const. amend. VI.26
U.S. Const. amend XIV, 110
Other
Amir Hatem Ali, Following the Bright Line of Michigan v. Summers: A Cause for Concern
for Advocates of Bright-Line Fourth Amendment Rules, 45 Harv. C.R.-C.L. L. Rev. 483
(2010)14,19,24,25
CONSTITUTIONAL PROVISIONS

Amendment IV to the Constitution of the United States

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.
Amendment VI to the Constitution of the United States
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial, by an impartial jury of the state and district wherein the crime shall have been
committed, which district shall have been previously ascertained by law, and to be informed
of the nature and cause of the accusation; to be confronted with the witnesses against him; to
have compulsory process for obtaining witnesses in his favor, and to have the assistance of
counsel for his defense.

Amendment XIV, 1 to the Constitution of the United States

All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the state wherein they reside. No state shall
make or enforce any law which shall abridge the privileges or immunities of citizens of the
United States; nor shall any state deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

QUESTIONS PRESENTED
1.

Whether a Summers-like detention incident to the execution of a search warrant is

proper when the resident is detained in an area outside the immediate vicinity of the search?

2.

Whether a conflict of interest between an attorney and his client creates a

presumption of prejudice, thus rendering the assistance of counsel constitutionally

insufficient, when the conflicted attorney acts only in the second capacity?

STATEMENT OF THE CASE

This is an appeal to the United States Supreme Court arising from a decision of the
United States Court of Appeals for the Twelfth Circuit, rendered on August 6, 2011. The
Court of Appeals held that Clyde Barrows (Barrow) detention during the search of the
basement apartment at 225 Westview Drive amounted to an unreasonable, warrantless arrest
without probable cause, and that Barrow received ineffective assistance of counsel because
his trial was tainted by an impermissible conflict of interest between himself and his
attorneys. Clyde Barrow is asking this Court to affirm the Court of Appeals decision.
On July 1, 2005, at 9:00 pm, Detective Pistone and Detective Becker of the Tourovia
County Police Department (TCPD) arrived at 225 Westview Drive, Youslip, NY in order to
execute a search warrant for the basement apartment located there (the Apartment). (R.2)
The warrant stated that the target of the search was a handgun and that the Apartment was
believed to be occupied by a short, lean man with dark hair. (R.2) Upon arrival, the two
detectives noticed a man fitting this description leave the downstairs apartment. (R.2)
Rather than detain the suspect quickly right where he was first spotted, the detectives
allowed the suspect to enter his vehicle and drive away. (R.3) The suspect was then followed
for almost five minutes before being stopped at 9:08 am in a parking lot a mile away from the
Apartment. (R.3) Pistone stated that he did not detain the suspect right away because he
wanted to isolate the suspect from other dangerous individuals, and because he was
concerned that the suspect might flee once he became aware that the search was being
conducted. (R.3) Pistone also wanted an opportunity to search the suspect for weapons. (R.3)
As such, the suspect was quickly patted down in order to determine if he had any weapons on
him. (R.3) Pistone then felt confident that the suspect was weaponless. (R.3)

Following the pat down, Pistone began to question the suspect and asked to see his
drivers license. (R.3) The license revealed that the suspect was Clyde Barrow, and that he
lived at a Woodhull, NY address. (R.3) After further interrogation, Barrow stated that he was
traveling from his residence in the basement apartment of 225 Westview Drive. (R.3)
Despite Barrows cooperation up to this point, Pistone placed Barrow into handcuffs
and told him he was being detained. (R.3) Even though Barrow was told that he was not
being arrested, he was placed into the back of Pistones patrol car while still in handcuffs.
(R.3) Furthermore, he was told that he would be detained during the entire length of the
search. (R.3) It was at this point that Barrow first learned of the search taking place. (R.3)
Pistone then drove Barrow back to the Apartment even though Barrow told Pistone
that he was not going to help the officers with the search. (R.3) While handcuffed in the back
of the patrol car, Barrow began to grow nervous. (R.3) In hopes that the officers would go
easy on him, Barrow revealed to Pistone the location of a hidden compartment in his
apartment that contained narcotics. (R.3) He also told Pistone that the keys to the
compartment were on his key ring. (R.3)
Upon arrival at the apartment, the search entry team informed Pistone that the search
was already well underway and that no contraband had been found. (R.3) The team also
stated that the search wasnt looking good (R.3) Based solely on the information Barrow
told Pistone in the patrol car while he was detained, the detectives located the secret
compartment and opened it with Barrows keys. (R.3) Inside they found narcotics. (R.3) At
9:25 pm Barrow was formally arrested. (R.3)
After being indicted for various drug trafficking crimes, all relating to the events of
July 1, 2005, Barrow filed a pretrial motion to suppress evidence gathered as a result of the

inculpatory statements he made during his pre-arrest detention by Detective Pistone. (R.2)
The trial court entered judgment on October 10, 2006 declaring that, because they believed
that Barrows detention was a lawful detention incident to the execution of a search warrant,
Barrows motion was denied. (R.4)
During the ensuing trial, two attorneys, Mr. Dewey and Mr. Howe, represented
Barrow. (R.5) Unbeknownst to anyone at the time, Howe was placed onto Barrows defense
team by Mr. Smith, the head of the drug trafficking organization at issue in Barrows case.
(R.6) While Dewey was the primary attorney, Howe was placed on the defense in order to
protect Smiths interests by screening Barrows evidence and testimony to avoid any
statements that would implicate Smith. (R.5-6) Even though Howe was not the final decision
maker, he gave professional suggestions and input to Dewey and was present for parts of the
trial. (R.5)
After Barrows conviction on all three counts, his attorney, Howe, was indicted on
charges related to the same drug trafficking organization at issue in Barrows conviction.
(R.5-6) Mr. Smith was also indicted. (R.6) Howe was later murdered after Smiths lawyer
learned that Howe had agreed to cooperate with the government. (R.6)
Following the trial, Barrow filed a motion with the trial court seeking an Order
vacating the trial courts judgment of conviction and ordering a new trial. (R.5) Barrow
asserted that his representation was constitutionally insufficient because of a conflict of
interest between himself and a member of his defense team, Mr. Howe. (R.5) On February 1,
2010, the court denied Barrows motion because they felt that the conflict of interest did not
prejudice the outcome of the trial. (R.7)

Barrow filed an appeal to the United States Court of Appeals for the Twelfth Circuit
who, on August 6, 2011, issued a decision that reversed the trial courts rulings. (R.11) The
Court of Appeals first found that Barrows conviction was the result of an unreasonable and
unlawful seizure because his detention a mile away from the Apartment could not be
justified. (R.9-10) This was especially true because he had to suffer the inconvenience and
indignity of being detained on a public roadway. (R.10) Secondly, the court found that
Barrow received ineffective assistance of counsel because his trial was tainted by an
impermissible conflict of interest between himself and his attorneys. (R.11) The court
reasoned that Mr. Howes presence on the defense team undoubtedly served to influence
Deweys ultimate decision making. (R.11) As such, the court reversed the decisions of the
District Court. (R.11)
The United States of America filed a Writ of Certiorari with the United States
Supreme Court which was granted on June 1, 2012. (R.14) The matter is set down for
argument in the current term of the court in order to determine whether a Summers-like
detention incident to the execution of a search warrant is proper when the resident is detained
in an area outside the immediate vicinity of the search, and whether a conflict of interest
between an attorney and his client creates a presumption of prejudice, thus rendering the
assistance of counsel constitutionally insufficient, when the conflicted attorney acts only in a
secondary capacity. (R.14) Respondent Barrow asks that this Court affirm the ruling of the
Court of Appeals for the Twelfth Circuit.

SUMMARY OF THE ARGUMENT

The United States Court of Appeals for the Twelfth District was correct in holding
that Barrows detention during the search of the basement apartment at 225 Westview Drive
amounted to an unreasonable, warrantless arrest without probable cause, and that Barrow
received ineffective assistance of counsel because his trial was tainted by an impermissible
conflict of interest between himself and his attorneys.
The Fourth Amendment protects the right to be free from unreasonable seizures. The
Summers exception allows for detentions in the absence of probable cause if the detentions
intrusion is so much less severe than a traditional arrest, that the opposing interest in
crime prevention and detection and in the police officers safety could support the seizure as
reasonable.
In this case, because Barrow was detained on a public roadway a mile away from his
apartment, his detention was as intrusive as a formal arrest. Barrow was handcuffed, forced
into the back of a squad car, and not free to leave during the search. Such a detention is
virtually indistinguishable from a formal arrest. Additionally, because the detention occurred
on a public roadway, Barrow faced public humiliation in excess of the humiliation associated
with the search itself. Therefore, the detentions intrusiveness exceeded the intrusiveness of
the search itself, and the detention was as severe as a formal arrest.
Even if Barrows detention was so much less severe than a traditional arrest, the
intrusion into Barrows liberties was not outweighed by any justifications for the detention.
Law enforcement interests, along with the articulable facts that supported the detention,
may justify a Summers-like detention that is not made on probable cause, if the detention is
less severe than an arrest. None of the law enforcement interests listed in Summers are met in

situations, such as this one, where the suspect is detained outside the immediate vicinity of
the search and is unaware of the search being conducted. In these situations, there is no fear
that the occupant will flee, there is no risk of harm to the officers conducting the search, and
the occupant cannot help the facilitation of the search because he is not physically present to
assist the search team.
When considering the articulable facts that support a detention, the Court in Summers
did find that the existence of a search warrant implies the limited authority to detain the
occupants of the premises because a warrant gives police officers a certain basis to justify
the detention of the occupant. However, this finding created a bright line rule that could
potentially lead to unconstitutional seizures being ruled proper, and which places too much
power into the hands of individual police officers. As such, this over encompassing bright
line rule should be overruled, and cases of Summers-like detentions should be decided on a
case-by-case basis. As there are no articulable facts that justified Barrows detention in this
case, the intrusion into Barrows liberties was unjustified. Therefore, a Summers-like
detention was improper in this case, and the detention remains unreasonable under the
Fourteenth Amendment.
In addition, Barrow received ineffective assistance of counsel because his trial was
tainted by an impermissible conflict of interest between himself and his attorneys. It is
clearly established that the Sixth Amendment right to counsel is the right to the effective
assistance of counsel, which includes the right to representation free from conflicts of
interest. However, a conflict of interest is only deemed to be constitutionally insufficient if
the defendant was prejudiced by the shortcomings of his counsel. There is a limited
presumption of prejudice when an actual conflict of interest had an adverse impact on the

10

defense counsels performance. To prove that an adverse impact existed, a defendant must
demonstrate that the defense counsel failed to pursue an objectively reasonable alternative
strategy, and that the strategy was not pursued because of the conflict of interest.
In this case, an objectively reasonable alternative strategy would have been for the
defense to of taken liability off of the defendant by placing it onto either Howe or Mr. Smith,
since both were involved with the same drug scheme from which Barrows convictions arose.
However, Howe never would of allowed this to happen because he had an interest in
protecting both himself and Mr. Smith. As such, the defense counsel failed to pursue an
objectively reasonable alternative strategy because of Howes conflict of interest.
While Dewey was, admittedly, in charge of all the decisions pertaining to the defense
strategy, Howes tainted suggestions and input into the defense strategy no doubt tainted
Deweys decisions. As stated by the Fourth Circuit, bringing in independent trial counsel
does not necessarily cleanse a serious conflict of interest if the conflicted attorney continues
as a member of the defense team. Since Howe remained on the defense team throughout the
entire trial, he had plenty of opportunity to taint Dewey by withholding material evidence.
Therefore, there is a presumption of prejudice, thus rendering Barrows assistance of
counsel insufficient, because there was an actual conflict of interest between Barrow and
Howe, which adversely affected not only Howes representation of Barrow, but also Deweys
representation as well.
Accordingly, the United States Court of Appeals for the Twelfth District was correct
in holding that Barrows detention amounted to an unreasonable, warrantless arrest without
probable cause, and that Barrow received ineffective assistance of counsel. As such, its
decision should be affirmed.

11

ARGUMENT
I: A SUMMERS-LIKE DETENTION WAS IMPROPER IN THIS CASE BECAUSE
BARROW WAS DETAINED OUTSIDE THE IMMEDIATE VICINITY OF THE
SEARCH.
A Summers-like detention was improper in this case because the Summers exception
applies only to occupants on the premises when the detention occurs, and Barrow was a mile
away from the Apartment when he was detained. The Fourth Amendment protects the
individual right to be free from unreasonable search and seizure. Dunaway v. New York, 442
U.S. 200, 208 (1979) (discussing U.S. Const. amend. IV). In general, every arrest, and every
seizure having the essential attributes of a formal arrest, is unreasonable unless it is supported
by probable cause. Michigan v. Summers, 452 U.S. 692, 700 (1981).
The Supreme Court has carefully created a limited number of narrow exceptions
which allow for detentions in the absence of probable cause, if the detention was so much
less severe than a traditional arrest, that the opposing interest in crime prevention and
detection and in the police officers safety could support the seizure as reasonable,
Summers, 452 U.S at 697-698 (quoting Dunaway, 442 U.S. 200). This Court created one
such exception in Summers, where it was held that a warrant to search for contraband
founded on probable cause implicitly carries with it the limited authority to detain the
occupants of the premises while a proper search is conducted. 452 U.S at 705. This
exception is limited to suspects who are on the premises when the search begins and does not
extend to suspects outside the immediate vicinity of the search when the detention occurs.
United States v. Edwards, 103 F.3d 90, 94 (10th Cir. 1996); United States v. Sherrill, 27 F.3d
344, 346 (8th Cir. 1984); United States v. Boyd, 696 F.2d 63, 65 n.2 (8th Cir. 1982).

12

In this case, the intrusion into Barrows liberties caused by his detention was as
intrusive as that of a traditional arrest. Unlike the detention in Summers, the detention of
Barrow occurred on a public roadway outside the immediate vicinity of the search area,
(R.3), which added significantly to the public stigma associated with the search itself.
Furthermore, because Barrow was placed in handcuffs, and forced to ride in the back of a
police car, (R.3), his detention was indistinguishable from a traditional arrest.
Even if Barrows detention was so much less severe than a traditional arrest, the
intrusion into Barrows liberties was not outweighed by the justifications for the detention.
When considering if a detention is justified, the Summers exception allows for the
consideration of both law enforcement interests, and articulable facts that supported the
detention. 452 U.S. at 702. Summers considered three law enforcement interests, which
included (1) the prevention of flight by the occupant in the event that incriminating evidence
is found; (2) minimizing the risk of harm to the officers; and (3) the orderly completion of
the search...[which] may be facilitated if the occupants of the premises are present. Id. at
702-703. None of these interests are met in situations, such as this one, where the suspect is
detained outside the immediate vicinity of the search and is unaware of the search being
conducted. Sherrill, 27 F.3d at 346; Edwards, 103 F.3d at 94.
When considering the articulable facts and individualized suspicions that support a
detention, the Court in Summers did find that the existence of a search warrant implies the
limited authority to detain the occupants of the premises because a warrant gives a police
officer a certain basis to justify the detention of the occupant committing the crime. 452 U.S.
at 703. However, this finding created a bright line rule that could potentially lead to an
unconstitutional seizure being ruled proper, and which places too much power into the hands

13

of individual police officers. Amir Hatem Ali, Following the Bright Line of Michigan v.
Summers: A Cause for Concern for Advocates of Bright-Line Fourth Amendment Rules, 45
Harv. C.R.-C.L. L. Rev. 483, 493 (2010). As such, this over encompassing bright line rule
should be overruled, and cases of Summers-like detentions should be decided on a case-bycase basis. Id. As there were no articulable facts to justify Barrows detention in this case, the
intrusion into Barrows liberties was unjustified.
Therefore, a Summers-like detention was improper in this case because Barrow was a
mile away from the Apartment when he was detained.
A. The Intrusion Into Barrows Liberties Caused By His Detention Was as Intrusive
as That of a Traditional Arrest Because the Detention Occurred on a Public Road
a Mile From the Vicinity Being Searched.
The intrusion into Barrows liberties caused by his detention was as intrusive as that of a
traditional arrest because the detention occurred on a public roadway a mile away from the
vicinity being searched. This resulted in a detention that was indistinguishable from a formal
arrest. When a resident is detained incident to the execution of a search warrant, and when he
is in the immediate vicinity of the search, this Court has ruled that the detention is less severe
than a formal arrest. Summers, 452 U.S. at 701-702. On the other hand, when a resident is
detained on a public roadway outside of the search area, it is far more likely that the resulting
intrusion is as great as that of a formal arrest. Dunaway, 442 U.S. at 212; Sherrill, 27 F.3d at
346; Boyd, 696 F.2d at 65 n.2. Such a detention does not meet the requirements of the
Summers exception and is therefore unconstitutional. Id.
In Summers, the Court held that the detention of Summers amounted to an intrusion that
was less severe than that of a formal arrest because he was initially detained on the premises
connected with the search warrant, which meant that the detention added only minimally to

14

the public stigma associated with the search itself andinvolve[d] neither the inconvenience
nor the indignity associated with a compelled visit to the police station. 452 U.S. at 702.
Additionally, the Court noted that the detention was less severe than a formal arrest because
most citizenswould elect to remain [at the search area] in order to observe the search of
their possessions anyway. Id. at 701 (emphasis added).
The Court went on to say that the intrusion into Summers liberties was in sharp
contrast to the substantial intrusiveness experienced in Dunaway. Id. at 702. In Dunaway,
the Court found that the detention of Dunaway was indistinguishable from a traditional arrest
because he was not questioned briefly where he was found, but was instead transported in a
police car away from the area and interrogated. Dunaway, 442 U.S. at 212. Additionally, he
was never informed that he was free to go and he would have been restrained if he attempted
to leave. Id. The fact that Dunaway was never told that he was under arrest did not make the
seizure any less intrusive. Id. at 212-213. Indeed, any exception that could cover a seizure
as intrusive as that in this case would threaten to swallow the general rule that Fourth
Amendment seizures are reasonable only if based on probable cause. Id. at 213.
The Eighth Circuit has consistently held that the Summers exception does not extend to
cases where an occupant is detained on the street. See Sherrill, 27 F.3d at 346; Boyd, 696
F.2d at 65 n.2. In Sherrill, an occupant was seen leaving his residence just before a search
warrant for the premises was executed. 27 F.3d at 345. He was stopped one block from his
residence, detained, put in handcuffs, read his rights, and brought back to the search area. Id.
at 345-346. The court found that the intrusiveness caused by the stop and detention of
Sherrill on the street was much greater than the intrusiveness experienced by the resident in
Summers, since Summers was detained within the immediate search area. Id. at 346.

15

In the present case, the intrusion into Barrows liberties caused by his detention was as
intrusive as that of a traditional arrest. When Barrow was initially detained he was
handcuffed, placed into the back of a squad car, and driven back to his Apartment. (R.3)
Officer Pistone also told Barrow he was being detained while his apartment was searched,
(R.3), which indicates that Barrow was not free to leave during the search. Barrows
detention, therefore, had the essential attributes of a traditional arrest. Furthermore, Barrows
detention on a public street a mile away from the Apartment added significantly to the public
stigma associated with the search itself. Had Barrow been detained within his apartment, he
would not have been handcuffed on a public street, placed into a police car, and driven
through the streets of his neighborhood. Therefore, he was exposed to additional public
humiliation and inconvenience as a result of his detention. As such, the detention is more
severe than the search alone and is indistinguishable from a formal arrest.
The detention in Dunaway is analogous to the detention of Barrow in the case at bar. In
Dunaway, the suspect was not kept in the area he was found but was instead taken away in
the back of a police car. 442 U.S. at 203. Similarly, Barrow was not kept at the location
where he was stopped but was instead taken away in the back of a patrol car. (R.3)
Additionally, neither Dunaway nor Barrow was ever told that they were free to go, and
both would have been restrained if they tried to leave. 442 U.S. at 213; R.3. Since the Court
in Dunaway found that Dunaways detention was indistinguishable from a formal arrest, 442
U.S. at 212, so should this Court hold that Barrows detention was indistinguishable from a
formal arrest. Notably, the fact that Dunaway as never told that he was under arrest did not
make the seizure any less intrusive. 442 U.S. at 212-213. As such, this Court should find that

16

the seizure was not any less intrusive just because Barrow was told that he was not being
arrested.
While the Court in Summers did state that the detention of a resident who resided at a
house being searched was less intrusive than the search itself, 452 U.S. at 701, this statement
was premised on the resident being initially detained in the area of the search. In fact,
immediately after making this statement the Court went on to say that they believed that
most citizenswould elect to remain in order to observe the search anyway. Id. at 701
(emphasis added). Furthermore, as previously proved, detaining a resident outside the search
area on a public streets adds significantly to the intrusiveness and stigma associated with the
search itself. As such, this statement from Summers should be looked at in context and
should not be used to justify Barrows detention.
The Sixth Circuits holding in United States v. Cochran should not be applied to the case
at bar because Cochran applied a baseless rule. In Cochran, the court held that the initial
detention of a suspect who had driven a short distance from the search area was proper
because, under Summers, the police only needed to detain the resident as soon as practicable
after departing from [the] residence. United States v. Cochran, 939 F.2d 337, 339 (6th Cir.
1991) (discussing Summers, 452 U.S. 692). A thorough reading of the Summers decision,
however, reveals that the Court never mentioned that a resident could be detained off the
premises as long as it was as soon as practicable. Since the Cochran court made no citation
after making this statement, it is impossible to determine what part of the Summers decision
they were interpreting. Furthermore, it has already been shown that, if anything, the
Summers Court intended for their exception to be limited to occupants in the vicinity of the
search. However, even if Cochran did properly state the rule, Barrows detention would still

17

be improper. In Cochran, the suspect was stopped almost immediately after exiting his
residence, which to the court meant that he was detained as soon as practicable. 939 F.2d
at 339. In the current case, however, Barrow was followed for a full five minutes before
being stopped. (R.3) While five minutes is admittedly not a long time, it is certainly not
almost immediately nor as soon as possible. For these reasons, the Sixth Circuits
holding in Cochran should not be applied to this case.
Since Barrows detention outside the vicinity of the search was indistinguishable from a
formal arrest, and because the detention added significantly to the public stigma associated
with the search itself, the intrusion into Barrows liberties was as intrusive as that of a
traditional arrest.
B. Even if the Detention of Barrow Was So Much Less Severe than a Traditional
Arrest, the Intrusiveness of the Detention Greatly Outweighed its Justifications.
Even if Barrows detention was so much less severe than a traditional arrest, the
intrusion into Barrows liberties was not outweighed by any justification for the detention. A
Summers-like detention that is not made on probable cause, and does not amount to an arrest,
may still, none-the-less, be justified. Summers, 452 U.S. at 700-701. When assessing if a
detention is justified, both the law enforcement interest, and the nature of the articulable
factsthat supported the detention are relevant. Id. at 701. These law enforcement interests
include (1) the prevention of flight by the occupant in the event that incriminating evidence
is found; (2) minimizing the risk of harm to the officers; and (3) the orderly completion of
the search...[which] may be facilitated if the occupants of the premises are present. Id. at
702-703.
In this case, none of these law enforcement interests were furthered by Barrows
detention. Since Barrow was unaware of the search being conducted, (R.4), there was no risk

18

that he would attempt to flee. Additionally, he was a mile away from the premises when the
search began. (R.3) As such, it is unlikely that he would have become aware of the search,
which meant that there was no risk of him fleeing or harming the officers conducting the
search. Furthermore, he was unable to facilitate the completion of the search because of his
distance from the premises.
The Summers bright line rule that the existence of a search warrant implies the limited
authority to detain the occupants of the premises should be overruled because it could
potentially lead to an unconstitutional seizure being ruled proper, and because it places too
much power into the hands of individual police officers. 45 Harv. C.R.-C.L. L. Rev. at 493. If
this case is instead assessed by its specific facts, it is clear that there were no articulable facts
that justified Barrows detention. As such, even if Barrows detention was so much less
severe than a formal arrest, there was no justification for the intrusion into Barrows
liberties.
1. No law enforcement interests were furthered by Barrows detention a mile
away from the Apartment being searched because he was unaware of the
search warrant being executed.
None of the three law enforcement interests listed in Summers were furthered by
Barrows seizure because at the time of the detention he was a mile away from the Apartment
and unaware of the search being conducted. (R.3-4) Summers recognized three law
enforcement interests that could help justify a detention not founded on probable cause
including (1) the prevention of flight by the occupant in the event that incriminating
evidence is found; (2) minimizing the risk harm to the officers; and (3) the orderly
completion of the search...[which] may be facilitated if the occupants of the premises are
present. 452 U.S. at 702-703.

19

a. The officers had no interest in preventing the flight of Barrow because he

had no reason to flee before the detention occurred.
In this case, the polices legitimate law enforcement interest in preventing flight in
the event that incriminating evidence was found was far more attenuated than in Summers.
Edwards, 103 F.3d at 93-94. In Summers, the occupant was detained on the front steps of the
premises. 452 U.S. at 692. As such, the occupant in Summers was aware of the search being
conducted which gave rise to a reason for him to flee. In Sherrill and Edwards, on the other
hand, both the Eighth Circuit and the Tenth Circuit, respectively, found that officers had no
interest in preventing flight when the occupants had already left the area and were unaware
of the search warrant. Edwards, 103 F.3d at 94; Sherrill, 27 F.3d at 346.
In this case, as in Edwards and Sherrill, Barrow was unaware of the search being
conducted when he was stopped and would have remained unaware because he was a mile
away from the area. (R.3-4) Therefore, Barrow had no reason to flee. In fact, one of the
reasons Office Pistone chose to detain Barrow away from the search area was because he was
afraid that Barrow would flee once he realized the Apartment was being searched. (R.3) It
follows that the police believed that Barrow was not a flight risk once he left the area. As
such, the police had no reason to believe that Barrow would not have returned to the
premises later, where he could have been detained if incriminating evidence had been found.
Therefore, the police had no interest in preventing the flight of Barrow when the
detention was made.
b. Barrow was not detained in the interest of minimizing the risk of harm to
the officers because he posed no danger to the officers conducting the
search.
It cannot be said that Barrows detention was done in the interest of minimizing the
risk of harm to the officers because he could not hurt the officers while he was a mile away

20

from the Apartment, and because the officers were confident that he was not a danger at the
time of the detention. In Summers, the Court found that the officers had an interest in
minimizing harm to themselves because Summers might of used violence or frantic efforts
to destroy evidence of the narcotics being searched for if he had not been detained. 452 U.S.
at 702. However, this argument was premised on Summers being close enough to the
premises to be able to destroy evidence or injure officers. When an occupant is not in the area
of the search, and is unaware of the search warrant, the detention of the occupant cannot be
said to be in the interest of the safety of the officers. Sherrill, 27 F.3d at 346. Moreover, a
detention does not further an interest in safety if the officers quickly determine that the
occupant poses no risk of harm to them. Edwards, 103 F.3d at 94.
In the case at bar, Barrow posed no danger to the officers conducting the search when
he was detained. First, Barrow was a mile away from the area being search and was unaware
of the execution of the warrant. (R.3) Therefore, Barrow was not physically in a place where
he could have injured the officers. Second, even though Office Pistone said that he stopped
Barrow in order to have a chance to search him for weapons, (R.3), it was quickly
determined before the detention that Barrow was not a danger to the officers. Officer Pistone,
who patted down Barrow, stated that after the pat down he was confident that Barrow had no
weapons on him. (R.3) If anything, the officers created a dangerous situation for themselves
by needlessly alerting Barrow about the search being conducted, and by bringing him back to
the premises where a firearm was believed to be located.
The facts in the present case are distinguishable from the facts in the Seventh Circuit
case of United States v. Bullock. 632 F.3d 1004 (7th Cir. 2011). In Bullock, Bullock and
Wilhelm, Bullocks girlfriend and the one who lived at the residence being searched, were

21

seen driving away from the residence during pre-raid surveillance. Id. at 1008. Officers
lawfully stopped the vehicle, informed Wilhelm that there was a search warrant for her
house, and asked her for her house keys. Id. At that point, Bullock became aware of the
warrant, which made him a flight risk as well as a potential risk to the safety of the officers
conducting the search. Id. at 1020. As such, the court held that the detention of Bullock was
reasonable under the circumstances. Id. at 1021. In the present case, however, the officers
never asked Barrow for assistance in entering the Apartment. (R.3) As such, there was no
reason to tell Barrow that his Apartment was being searched. If anything, as stated before, the
officers created a risk of flight and a dangerous situation by needlessly informing Barrow
about the search. This case, therefore, is clearly distinguishable from Bullock, and the
holding from Bullock should not be applied to this case.
As such, the officers did not detain Barrow in the interest of minimizing the risk of
harm to themselves.
c. The officers did not detain Barrow in the interest of having him assist in
the orderly facilitation of the search because they began the search when
Barrow was a mile away from the Apartment.
The officers did not detain Barrow in the interest of having him assist in the orderly
facilitation of the search because when they began the search Barrow was a mile away from
the Apartment and, therefore, unable to assist them. The Court in Summers said that the
orderly completion of the search may be facilitated if the occupants of the premises are
present. 452 U.S. at 703 (emphasis added). They rationalized this statement by noting that
an occupant would want to avoid the use of force, which could damage their property, by
opening locked doors for the police. Id. In Edwards, therefore, the Tenth Circuit found that

22

Edwards detention did not aid in the orderly completion of a search because he was three
blocks away and therefore not present on the premises to facilitate the search. 103 F.3d at 94.
The facts in this case are more similar to those in Edwards than in Summers because
Barrow, like Edwards, was several blocks away from the premises when the search was
conducted. As such, just as in Edwards, Barrow could not have aided in the orderly
completion of the search because he was not present to facilitate the search. Furthermore,
before being forced into the squad car Barrow told the detectives that he was not going to
assist them with the search. (R.3) Since the officers knew that he was no going to help
facilitate the search, the detention could not have been done to further this interest.
While it is true that Barrow was ultimately brought back to the premises, by the time
he arrived there the search was already underway, (R.3), and any damage that could have
been avoided by Barrows facilitation was already done. At that point Barrow was of no help
to the officers. Notably, the secret compartment had not been located by the time Barrow
arrived at the Apartment, and the Record suggests that the entry team had already done a
thorough search of the premises. (R.3) Therefore, while Barrows keys were used to open the
locked box, (R.3), the box probably would not have been discovered, and therefore not
forced opened, if Barrow had not revealed its location during his illegal detention.
While the Sixth Circuit in United States v. Cochran did find that the police in that
case had a legitimate interest in having a suspect return to the residence to facilitate the
search, 939 F.2d at 340, the facts of the case are much different from the one at bar. In
Cochran, the police officers thought that Cochrans cooperation was needed to conduct the
search because there was a guard dog at the residence. Id. at 338. Therefore, Cochrans
facilitation was needed to help avoid a potentially dangerous situation for the officers. Id. As

23

such, the officers were attempting to further not only their interest in an orderly search, but
also their interest in minimizing harm to themselves. Id. In the present case, however, no
potentially dangerous obstacles existed at Barrows residence. Therefore, the cases are clearly
distinguishable, and the holding in Cochran should not be applied to this case.
As such, the officers did not detain Barrow in order to have him assist in the orderly
facilitation of the search. Therefore, none of the three law enforcement interests listed in
Summers were furthered by Barrows detention.
2. If this Court properly abandons the bright line rule set forth in Summers,
and decides this case according to its specific facts, it is obvious that there
were no articulable facts that justified Barrows detention.
The Summers bright line rule that the existence of a search warrant implies the
limited authority to detain the occupants of the premises should be overruled because it
could potentially lead to an unconstitutional seizure being ruled proper, and because it places
too much power into the hands of individual police officers. 45 Harv. C.R.-C.L. L. Rev. at
493. Once this case is assessed according to its specific facts, it is clear that there are no
articulable facts that justified Barrows detention.
According to Summers, when determining if a detention that does not amount to an
arrest can be justified it is appropriate to consider the nature of the articulablesuspicion on
which the police base the detention. 452 U.S. at 703. The Court went on to find that [t]he
existence of a search warrantprovides an objective justification for the detention because
a warrant gives an officer a certain basis to justify a detention of the occupant. Id. Under this
logic, the Court created the bright line rule that the issuance of a search warrant implies a
limited authority to detain the occupants of the premises. Id. at 705.

24

This bright line rule, however, forces courts to rule that any seizure of an occupant of
a premises being searched pursuant to a warrant is constitutional, even if the particular facts
of the case indicate otherwise. 45 Harv. C.R.-C.L. L. Rev. at 493. According to this rule, the
detention of any occupant detained pursuant to a valid search warrant is always justified,
even in situations where the intrusion is grievously insurmountable. Id. As such, a court must
rule that an otherwise unconstitutional seizure is proper. Id. Since every detention in
connection with a search warrant is now legal, the decision to detain an occupant is entirely
up to the discretion of the police officers. Id.
Therefore, this Court should abandon the over encompassing bright line rule set forth
in Summers and hold that Summers-like detentions should be decided by the courts on a
case-by-case basis.
If this case is instead analyzed according to its particular facts, it is obvious that there
were no articulable facts that justified the detention of Barrow. In other cases, the behavior of
an occupant prior to the execution of the search warrant was an articulable fact that justified
the detention of the occupant off the premises. United States v. Cavazos, 288 F.3d 706, 712
(5th Cir. 2002); Cochran, 939 F.2d at 340. In Cavazos, for instance, the Fifth Circuit held the
detention of an occupant was justified only after he peered into police vehicles surveilling his
residence, and drove at the police in a threatening manner. 288 F.3d at 711. The court held
that these facts warranted the belief that the occupant would have fled or alerted the residents
of the premises to be searched if he had been released. Id. The court went on to say that the
critical difference between Cavazos and previous cases, where the detentions were not
justified, was Cavazos behavior prior to the seizure. Id. at 712.

25

Similarly, the Sixth Circuit in Cochran held that it was the acts of the defendant
himself that allowed the police to expand their detention to include the search of his vehicle.
939 F.2d at 339. In Cochran, the police lawfully stopped Cochran after he left his residence
by car in order to ask for his help in entering his house. Id. at 338. As officers approached the
car the defendant made sudden movements that led the police to believe that he was reaching
for a gun in the glove compartment. Id. As a result, the glove compartment was searched, and
a nine-millimeter clip was found. Id. The court held that the search was proper because the
defendants actions broadened the scope of the initial stop. Id. at 340.
In the case at bar, the Record is void of any articulable facts that justified the initial
detention of Barrow. Barrow was not acting aggressively towards officers, there was no
indication that he was aware that his residence was about to be searched, and the officers
quickly determined that Barrow did not have any weapons on him. (R.3) As such, there were
no articulable facts that justified the initial detention of Barrow.
Therefore, if this Court properly abandons the over encompassing bright line rule set
forth in Summers and decides this case according to its specific facts, it is obvious that there
were no articulable facts that justified Barrows initial detention.
II: MR.
BARROW
RECEIVED
CONSTITUTIONALLY
INSUFFICIENT
ASSISTANCE OF COUNSEL BECAUSE HIS TRIAL WAS TAINTED BY AN
IMPERMISSIBLE CONFLICT OF INTEREST BETWEEN HIMSELF AND HIS
ATTORNEYS.
It is clearly established federal law that the Sixth Amendment right to counsel is the
right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686
(1984) (discussing U.S. Const. amend. VI). It is also clearly established that the right to
effective assistance includes the right to representation free from conflicts of interest. Rubin
v. Gee, 292 F.3d 396, 401 (4th Cir. 2002) (discussing Cuyler v. Sullivan, 446 U.S. 335, 34826

350 (1980)). Assistance which is ineffective in preserving fairness does not meet the
constitutional mandate. Mickens v. Taylor, 122 S.Ct. 1237, 1240 (2002).
In order to establish that assistance of counsel was constitutionally insufficient, a
defendant must show that his attorney did not act as a reasonably competent attorney and
that he was prejudiced by the shortcomings of his counsel. Strickland, 466 U.S. at 687. The
courts have recognized that there is a limited presumption of prejudice when an actual
conflict of interest existed, and when the conflict had an adverse impact on the defense
counsels performance. Id. at 692 (discussing Sullivan, 446 U.S. at 348-349).
It cannot be disputed that there was an actual conflict of interest between Mr. Howe
and Barrow in this case. As an attorney for Barrow, Howe had a duty to represent Barrows
interests. However, Mr. Smith placed Howe on the defense team to protect Smiths interests
at Barrows expense. (R.6) Furthermore, Howe himself was later implicated in the same drug
trafficking scheme from which Barrows conviction arose. (R.6) One of Howes interests, no
doubt, would have been to keep liability off of himself at all costs. As such, Howe had a
conflict of interest because his loyalty to Barrow conflicted with his loyalty to Smith and
himself. The question in this case, therefore, is whether or not the conflict had an adverse
impact of the defense counsels performance, thus giving rise to a presumption of prejudice,
when Howe was acting in only a secondary capacity.
To prove that a conflict of interest had an adverse impact on the counsels
performance, a defendant must demonstrate that the defense counsel failed to pursue an
objectively reasonable alternative strategy, and that the failure to pursue the alternative
strategy was linked to the conflict. Rubin v. Gee, 292 F.3d at 404 (discussing Mickens v.
Taylor, 240 F.3d 348, 361 (4th Cir.2001) (en banc), affd,122 S.Ct. 1237). It is important to

27

note that bringing in independent trial counsel does not necessarily cleanse a serious conflict
of interest if the conflicted attorney continues as a member of the defense team. Rubin, 292
F.3d at 406 (discussing United States v. Tatum, 943 F.2d 370, 378-379 (4th Cir. 1991)).
The Fourth Circuit applied these rules in the case of Rubin v. Gee and found that
there was a presumption of prejudice. 292 F.3d at 404. In 1990 Lisa Rubin shot and killed her
husband, Timothy Warner. Id. at 398. In the days that followed the murder, her attorneys,
Longest and Gavin, helped Rubin evade detection and get to the bank so she could withdraw
$105,000 to cover their retainer fee and expenses. Id. at 399. In addition, Longest hid
evidence of the murder in his office. Id. It was only when a warrant was issued for her arrest
that the attorneys turned Rubin in. Id. Rubin was then convicted of murder and sentenced to
life in prison. Id. at 398.
On appeal, Rubin argued that her counsel was constitutionally insufficient because
they had a conflict of interest. Id. at 399. The Fourth Circuit began by stating that it was
undisputed that the attorneys had a conflict of interest. Id. at 404. The question before them
was whether or not the conflict had an adverse impact on Rubins representation. Id. at 403.
They stated that in order to prove that a conflict of interest had an adverse impact, a
defendant must demonstrate that the defense counsel failed to pursue an objectively
reasonable alternative strategy and that the failure to pursue the alternative strategy was
linked to the conflict. Id. at 404 (discussing Mickens v. Taylor, 240 F.3d 348, 361 (4th
Cir.2001) (en banc), affd,122 S.Ct. 1237). The court found that an objectively reasonable
strategy would have been for the defense team to of had Longest and Gavin testify in order to
draw some of the liability off of Rubin. 292 F.3d at 405. However, the defense failed to
pursue this strategy because it would have exposed Longest and Gavin, who were on the

28

defense team, to criminal liability. Id. As such, Rubins defense team failed to pursue this
objectively reasonable strategy because of a conflict of interest. Id.
The court in Rubin also held that the taint caused by the conflicted attorneys was not
cleansed simply because there were three other non-conflicted lawyers on the defense team.
Id. While Longest and Gavin never sat at the counsel table during Rubins trial, they did
remain as active members of the defense team. Id. at 399. This meant that the other attorneys
could not call either as witnesses, which, the court found, tainted their representation of
Rubin. Id. at 405. The court held that the conclusion that attorneys as conflicted as Longest
and Gavin could somehow remain active in Rubins case as long as they did not control trial
strategy was an objectively unreasonable application of the Sullivan standard. Id. (alteration
in original). As such, the court ruled that there was ineffective assistance of counsel under
Sullivan. Id. at 406.
In this case, the conflict of interest between Howe and Barrow adversely affected the
defense teams representation because the counsel failed to pursue an objectively reasonable
alternative strategy and because the failure to pursue the strategy was linked to Howes
conflicts of interest. An objectively reasonable strategy would have been to draw liability
away from Barrow by placing it onto either Mr. Smith or Howe. This was a plausible strategy
because Howe was involved with the drug scheme connected with Barrows case, which
indicates that he knew enough information about the scheme to implicate himself. (R.6)
Additionally, since Howe was later murdered, presumably on Smiths orders after he agreed
to reveal information about the scheme to the government, (R.6), it is reasonable to assume
that Howe knew enough about the scheme to implicate Smith as well. As such, this was an
objectively reasonable alternative strategy that Barrows counsel failed to pursue.

29

The failure to pursue this alternative strategy was linked to Howes conflicts of
interest. If Howe had pursued this strategy it would have exposed himself, along with Smith,
to criminal liability. This would have jeopardized his loyalty to Smiths interests and his own
interests. While Dewey was, admittedly, in charge of all the decisions pertaining to the
defense strategy, (R.5), Howes tainted suggestions and input into the defense strategy no
doubt tainted Deweys decisions. After all, Deweys failure to pursue this strategy was
probably linked to his lack of knowledge about the connection between Howe, Smith, and
Barrow, and it was Howes loyalties to Smith and himself that kept this information from
Dewey. In fact, Howe was placed on the defense team by Smith specifically to protect
Smiths interests by screening Barrows evidence and testimony to avoid any evidence that
would have implicated Smith. (R.6) Since Howe remained on the defense team throughout
the entire trial, (R.5), he had plenty of opportunity to taint the defense strategy and to keep
material evidence from Dewey. As such, the defense counsels failure to pursue this
alternative strategy was linked to Howes conflicts of interest. Therefore, the conflict of
interest between Barrow and Howe adversely affected not only Howes representation of
Barrow, but also Deweys representation as well.
The facts in the case at bar are similar to the facts in Rubin. In Rubin, Rubins
lawyers, Longest and Gavin, were involved with covering up the murder from which Rubins
conviction arose, 292 F.3d at 399, just as Howe was involved in the same drug scheme from
which Barrows conviction arose, (R.6). In the days following the murder, Rubin was acting
under the professional direction of Longest and Gavin in order to evade detection. 292 F.3d at
399. Similarly, in this case, Barrow acted under the direction of Mr. Smith, the head of the
drug trafficking organization at issue in Barrows case. (R.6) Furthermore, Longest and

30

Gavin remained a part of Rubins counsel in order to draw attention away from their own
actions, 292 F.3d at 405, just as Howe was placed on Barrows counsel to protect Mr. Smiths
interests, (R.6). Neither the attorneys in Rubin, nor Howe in the present case, acted as lead
attorneys, but they did remain on the defense team throughout the entire trial. 292 F.3d at
399; (R.5). The difference between the cases is that Longest and Gavin did not sit at the
counsel table during Rubins trial, 292 F.3d at 399, while Howe was present for some of
Barrows trial, (R.5).
Given the similarities between Rubin and the case at bar, this Court should apply the
reasoning adopted by the Fourth Circuit in Rubin. First, just like Longest and Gavin in
Rubin, Howe undoubtedly had a conflict of interest. Second, just as in Rubin, Howes
conflict of interest adversely affected the counsels representation. In Rubin, it was found that
an objectively reasonable alternative strategy would have been to of taken liability off of
Rubin by placing it onto Longest and Gavin. 292 F. 3d at 405. An objectively reasonable
alternative strategy in this case, therefore, would have been to draw liability off of Barrow by
placing it onto either Smith or Howe. In Rubin, the defense failed to pursue this alternative
strategy because it would have exposed Longest and Gavin, who were on the defense team,
to criminal liability. 292 F.3d at 405. Similarly, Howe never pursued this strategy, and made it
impossible for Dewey to pursue it, because it would have exposed himself and Smith to
criminal liability. Finally, Rubin found that the presence of other non-conflicted lawyers on
the defense team did not cleanse the taint caused by the conflicted attorneys because Longest
and Gavin remained as active members of the team. 292 F.3d at 405. Howe also remained an
active member of Barrows defense team and, if anything, had more influence than the
lawyers in Rubin because Howe was present for parts of Barrows trial. (R.5) As such, this

31

Court should also find that the presence of Dewey did not cleanse the taint caused by Howes
presence.
As such, this Court should find as the court in Rubin did and hold that it would be an
objectively unreasonable application of the Sullivan standard to find that such a conflicted
attorney as Mr. Howe could actively represent Barrow as long as he acted in only a
secondary capacity. Rubin, 292 F.3d at 405. Therefore, the conflict of interest between
Barrow and Howe adversely affected not only Howes representation of Barrow, but also
Deweys representation as well.
While the facts in the case at bar are, admittedly, similar to those in Triana v. United
States, the holding from Triana should not be applied to Barrows case because Triana fails to
apply the well-established presumption of prejudice rule created by this Court in Sullivan.
Triana, 205 F.3d 36 (2d Cir. 2000). In Triana, the Second Circuit recognized that there are
certain circumstances in which there is a presumption that a defendant was prejudiced by the
shortcomings of his counsel. Id. at 42. It is well-settled, they stated, that the right to
counsel is violated per se where the [defense] attorney was implicated in the defendants
crime. Id. at 42 (internal quotes eliminated). However, all of the cases cited to were decided
by the Second Circuit itself. Id. at 42.While this rule may be well established in the Second
Circuit, the court failed to prove that other courts have adopted it as well. Furthermore, the
court failed to apply, or even consider, the well-established rule laid out by this Court in
Sullivan, which states that there is a presumption of prejudice when an actual conflict of
interest had an adverse impact on the counsels performance.
In applying the Second Circuit rule, the Triana court found that there was no
presumption of prejudice because the conflicted lawyer did not control the defense strategy

32

and because he had no influence on the cases outcome. 205 F.3d at 43. However, by
applying the Second Circuit rule, the court did not consider that a conflicted attorney could
taint the decisions of the rest of the defense counsel. Not only does the Sullivan rule allow for
this consideration, but it is also the rule laid out by this Court. As such, this Court should
apply its own well-established Sullivan rule, and not the Second Circuits rule, to the case at
bar. Therefore, the Second Circuits ruling in Triana has no bearing on the present case.
Therefore, there is a presumption of prejudice, thus rendering Barrows assistance of
counsel insufficient, because there was an actual conflict of interest between Barrow and
Howe, which adversely affected not only Howes representation of Barrow but also Deweys
representation as well.

33

CONCLUSION
For the foregoing reasons, Barrows detention outside the immediate vicinity of the
search was improper, and the conflict of interest between Mr. Howe and Barrow created a
presumption of prejudice, which thus renders Barrows assistance of counsel constitutionally
insufficient. Accordingly, the United States Court of Appeals for the Twelfth Circuit was
correct in overturning the District Courts decisions. The Court of Appeals decision holding
that Barrows detention during the search of the basement apartment at 225 Westview Drive
amounted to an unreasonable, warrantless arrest without probable cause, and that Barrow
received ineffective assistance of counsel because his trial was tainted by an impermissible
conflict of interest between himself and his attorneys should be affirmed.

34