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Professor Marc Miller's Fall 1995 Exam.

  1. This is a 48 hour take home exam. This exam is written so that it can be completed in one day of work; the extra time is intended to reduce the pressure.

     

  2. Your answer should be no more than 12 double spaced typewritten pages. It may be shorter.

     

  3. This is an open book / open life take home exam. You are not bound by the cases and materials we have discussed in class. I do not expect you to spend much (if any) time researching. I do expect you to spend your time thinking, organizing, writing and editing.

     

  4. As with the rest of your legal life, organization and clarity are great virtues, and will be rewarded.
GOOD FAITH

In October, 1995, Congress passes HR 666, the Exclusionary Rule Reform Act, which provides that evidence obtained as a result of a search or seizure shall not be excluded in federal court ìif the search or seizure was carried out in circumstances justifying an objectively reasonable belief that it was in conformity with the fourth amendment.î Before the US Supreme Court has a chance to decide the issue, the Rhode Island Supreme Court hears two cases. The first case involves the constitutionality of drugs seized in a home by a state officer in good faith reliance on a defective search warrant -- the Leon issue, which has not yet been decided under state law by the Rhode Island Supreme Court. The trial court found the warrant defective because it was based on information offered from two confidential informants which did not satisfy the proba ble cause requirement, even when assessed in light of the Gates / totality of the circumstances test. The second case involves drugs found in a search of a home done by a state officer without a warrant in good faith reliance on federal law. Federal law would, indeed, have allowed the search, but the officer was not aware of a different and more protective standard under a recent state case making the search illegal. The trial court finds that this was a reasonable, objective good faith judgment on the officerís part.

Article I, ß6 of the Rhode Island Constitution provides:

Section 6. Search and Seizure
The right of the people to be secure in their persons, papers, and possessions, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue, but on complaint in writing, upon probable cause, supported by oath or affirmation, and describing as nearly as may be, the place to be searched and the persons or things to be seized. Over objection the first state trial court allowed into evidence the material seized in reliance on the defective warrant. The second court allowed the evidence found during the search based on the good faith reliance on the federal statutory standard. Neither court wrote an opinion. The Rhode Island Supreme Court has granted a hearing directly from these judgments, and has consolidated the cases on appeal.

 

You must write two decisions -- a majority and a dissent -- on two issues.

 

Issue One
Does the state constitution allow an exception to the exclusionary rule for searches done based on good faith reliance on a warrant which subsequently turns out to be defective? NOTE: You do not need to research Rhode Island law. The purpose of this question is to free you from the constraints of treating US v. Leon as binding law. The question you must address is whether the state should follow Leon. Our class materials included a copy of a state decision rejecting Leon (which summarized the Leon decision). A copy of Leon follows, more for assurance than out of a sense that you need to read the whole opinion. Note that the bulk of the decision is a long dissent by Justice Brennan.

Issue Two

Should the state court adopt a state judicial exception to the exclusionary rule to mirror the federal statutory exception. Though a state court might be able to avoid them, you should answer the following two questions: (a) is the warrantless good faith exception likely to be upheld by the US Supreme Court? (b) should the court adopt a warrantless good faith exception as a matter of judicial policy, or leave it for the state legislature to consider?


hr> It does not matter which side ìwinsî: you may affirm or reverse the trial court, but you must take both sides of both issues. Thus, if your majority decision affirms the trial court on both issues, you need write only one dissent. If your majority decision affirms on the Leon issue but reverses the trial court on the ìHR 666 / warrantless good faithî issue, then you will probably need to write two (shorter) dissents, one taking the other side of the Leon issue, and the second dissenting on the ìHR 666 / warrantless good faithî issue, since it is hard (but not impossible) to imagine a court rejecting good faith based on a warrant but accepting good faith judgments not based on a warrant. Remember, you are limited to a total of twelve pages. Do not waste space by simply offering warmed over Leon. You may summarize and then explain why you adopt or reject arguments in Leon or other cases, but donít spend space simply repeating (as opposed to summarizing or critiquing) arguments. Since there are no detailed facts, donít waste space reciting the facts. Though reference to cases we have studied is perfectly appropriate, I do not expect case- or precedent-driven opinions. The goal is to explore the issues surrounding warrant-based and warrantless good faith exceptions to the exclusionary rule, using the judicial perspective as a device to identify, explore and resolve key issues.

 
 
© 2007 Marc L. Miller & Ronald F. Wright