No IN THE SUPREME COURT OF THE UNITED STATES. October Term Petitioner, -- against -- Respondent. BRIEF FOR PETITIONER

Transcription

1 7P No IN THE SUPREME COURT OF THE UNITED STATES October Term 2016 UNITED STATES OF AMERICA, Petitioner, -- against -- PAUL RUTHERFORD, Respondent. BRIEF FOR PETITIONER

2 QUESTIONS PRESENTED I. Does the good faith exception to the exclusionary rule announced in United States v. Leon apply to evidence seized pursuant to a search warrant where the probable cause supporting issuance of the warrant has been established with evidence seized in violation of the Fourth Amendment? II. Does Federal Rule of Evidence 803(3) permit the admissions of a statement of a declarant s then-existing state of mind to prove conduct of someone other than the declarant? III. Is a criminal defendant s Sixth Amendment right of confrontation under Crawford v. Washington violated by admitting opinion testimony of a surrogate medical examiner concerning cause of death where that opinion is based on statements in an autopsy report prepared by another, unavailable medical examiner? i

3 TABLE OF CONTENTS QUESTIONS PRESENTED... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iv STATEMENT OF THE CASE... 1 Statement of Facts... 1 Procedural History... 4 SUMMARY OF THE ARGUMENT... 5 ARGUMENT... 7 I. APPLICATION OF THE GOOD FAITH EXCEPTION TO THE EXCLUSIONARY RULE IS APPROPRIATE WHERE PROBABLE CAUSE SUPPORTING ISSUANCE OF A SEARCH WARRANT WAS ESTABLISHED WITH EVIDENCE SEIZED IN VIOLATION OF THE FOURTH AMENDMENT... 7 A. The Law Does Not Mandate Exclusion for Violations of a Criminal Defendant s Constitutional Rights i. Evidence obtained under a search warrant should be suppressed in few instances.. 8 ii. The good faith exception is achieved by presenting a transparent search warrant application to a detached and neutral magistrate iii. Application of the good faith exception in Ganias is analogous to this case B. This Court Has Found that Warrantless Searches Are Not Per Se Unreasonable II. A RELEVANT STATEMENT OF A DECLARANT S THEN-EXISTING STATE OF MIND IS ADMISSIBLE TO PROVE THE DECLARANT S INTENT AS WELL AS THE ACTIONS OF A THIRD PARTY A. The Text of Rule 803(3) is Clear on Its Face and As Such Smith's Statements Are Admissible of Evidence of the Defendant's Conduct...15 ii

4 B. Smith s Statement that He was Going to the Defendant s for Dinner is Competent Evidence that They Did In Fact Meet Because Such Statements Contain a High Degree of Trustworthiness..16 III. A CRIMINAL DEFENDANT S RIGHT TO CONFRONTATION IS NOT VIOLATED WHEN A SURROGATE MEDICAL EXAMINER PROVIDES AN OPINION BASED ON AN AUTOPSY REPORT PREPARED BY ANOTHER MEDICAL EXAMINER IN THE ORDINARY COURSE OF BUSINESS BECAUSE AUTOPSY REPORTS ARE BUSINESS RECORDS A. An Autopsy Report is Non-Testimonial and Admissible as a Business Record under Federal Rule of Evidence 803(6)..21 B. An Autopsy Report is Non-Testimonial and Admissible as a Public Record under Federal Rule of Evidence 803(8)(A-B) 23 C. A Medical Examiner is Permitted to Provide Opinion Testimony under Federal Rule of Evidence 703 Even When That Opinion is Based on an Inadmissible Piece of Evidence..25 CONCLUSION iii

5 TABLE OF AUTHORITIES CASES: United States Supreme Court Bullcoming v. New Mexico, 564 U.S. 647 (2011) Crawford v. Washington, 541 U.S. 36 (2004)... 18, 24 Davis v. United States, 564 U.S. 229 (2011)... 8 Davis v. Washington, 547 U.S. 813 (2006) Elkins v. United States, 364 U.S. 206 (1960)... 8 Herring v. United States, 555 U.S. 135 (2009)... 9, 11 Illinois v. McArthur, 531 U.S. 326 (2001) Kentucky v. King, 563 U.S. 452 (2011) Mapp v. Ohio, 367 U.S. 643 (1961)... 8 Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285 (1892)... 15, 16, 17 Nix v. Williams, 467 U.S. 431 (1984) United States v. Ganias, 824 F.3d 199 (2d Cir. 2016) cert. denied, U.S., 2016 WL (Dec. 5, 2016) United States v. Leon 468 U.S. 897 (1984)... 8, 9 United States v. New Hampshire, 403 U.S. 443 (1971) United States v. Sharpe, 470 U.S. 675 (1985) United States v. Turkette, 452 U.S. 576 (1981) Williams v. Illinois, 132 S. Ct (2012)... 18, 19 iv

6 United States Courts of Appeal Araya v. McLelland, 525 F.2d 1194 (5th Cir. 1976) Baughman v. Cooper-Jarrett, Inc., 530 F.2d 529 (3d Cir. 1976) Gual Morales v. Hernandez Vega, 579 F.2d 677 (1st Cir. 1978) McNeiece v. Lattimore, 501 F. App x 634 (9th Cir. 2012) Terranova v. Kincheloe, 852 F.2d 424 (9th Cir. 1988) United States v. Charles George Trucking Co., 823 F.2d 685 (1st Cir. 1987) United States v. Davis, 690 F.3d 226 (4th Cir. 2012)... 9 United States v. De La Cruz, 514 F.3d 121 (1st Cir. 2008) United States v. Feliz, 467 F.3d 227 (2d Cir. 2006)... 20, 21, 22, 23, 24, 26 United States v. Ganias, 824 F.3d 199 (2d Cir. 2016) United States v. Herrera, 444 F.3d 1238 (10th Cir. 2006) United States v. Ignasiak, 667 F.3d 1217 (11th Cir. 2012) United States v. James, 712 F.3d 79 (2d Cir. 2012) United States v. Jenkins, 579 F.2d 840 (4th Cir. 1978) United States v. Joe, 8 F.3d 1488 (10th Cir. 1993) United States v. Johnson, 587 F.3d 625 (4th Cir. 2009) United States v. Leon, 701 F.2d 187 (9th Cir. 1983) United States v. Nersesian, 824 F.2d 1294 (2d Cir. 1987) United States v. Pheaster, 544 F.2d 353 (9th Cir. 1976)... 14, 16 United States v. Rosa, 11 F.3d 315 (2d Cir. 1993) Vega v. Walsh, 669 F.3d 123 (2d Cir. 2012)... 20, 21, 22 v

7 United States District Court United States v. Houlihan, 871 F. Supp 1495 (D. Mass. 1994)... 14, 15, 16, 18 State Court People v. Defore, 150 N.E. 585 (N.Y. 1926) FEDERAL RULES: Fed. R. Evid , 25 Fed. R. Evid. 803(3) , 16 Fed. R. Evid. 803(6) Fed. R. Evid. 803(8)(A)-(B) CONSTITUTIONAL PROVISIONS: U.S. CONST. amend. IV U.S. CONST. amend. VI OTHER AUTHORITIES: Fed. R. Evid. 803 advisory committee s notes to exception H.R. REP. No. 650, 93rd Cong., 1st Sess. (1973) Fed. R. Evid. 703 advisory committee s note vi

8 STATEMENT OF THE CASE Statement of Facts The Respondent, Paul Rutherford ( Rutherford ), was elected Governor of the State of Boerum in (R. 3.) As promised during Rutherford s campaign, contracts worth over $100 million to rebuild the Cobble Hill Bridge and develop the surrounding area were put out for bid. (R. 3.) Shortly after all the contracts were awarded in June 2014, rejected bidders alleged that Rutherford and high-level members of his staff rigged the bidding process by steering contracts to Rutherford s friends and contributors. (R. 3, 6.) The United States Attorney s Office ( USAO ) and the Federal Bureau of Investigation ( FBI ) then began an investigation of the corruption allegations. (R. 3.) In August 2014, the USAO interviewed Victor Smith ( Smith ), Rutherford s top aide, who agreed to cooperate. (R. 4.) As a condition for receiving immunity, Smith agreed to disclose all information about criminal wrongdoing by public officials that he knew about or would come to learn. (R. 4.) Following this interview, on August 29, 2014, the USAO issued a grand jury subpoena for all electronic documents on Rutherford s computers that related to the contract bidding process. (R. 4.) In addition, on September 19, 2014, the USAO issued a grand jury subpoena for Smith s testimony, to be heard on October 16, (R. 4.) In late August or early September 2014, FBI Special Agent Ian Loyal ( Loyal ), who oversaw the corruption investigation, called his former supervisor and the head of Rutherford s security, Joe Turner ( Turner ). (R. 5.) Loyal informed Turner to be careful of the corruption investigation, because someone close to Rutherford had signed up as a cooperator. (R. 5.) 1

9 On the morning of October 11, 2014, Smith was found dead by his fiancée, Anita Flores ( Flores ). (R. 4.) FBI agents interviewed Flores on October 12, 2014 about Smith s death. (R. 5.) Flores informed the FBI that she spoke with Smith the night before his death and Smith told her that he was going to meet Rutherford at the Governor s apartment for dinner and was going out for drinks with friends after that. (R. 5.) In addition, Flores told authorities that one or two weeks before his death, Smith had learned upsetting information about Rutherford while reviewing documents on the Governor s laptop computer. (R. 5.) That same day, October 12, 2014, Dr. Lawrence Fleischer ( Dr. Fleischer ), Assistant Medical Examiner for Boerum City, conducted an autopsy of Smith s body. (R. 11.) Dr. Fleischer was the only examiner present during the autopsy and did not record the examination. 1 (R. 14.) Dr. Fleischer concluded that Smith died from a lethal ingestion of the pesticide, Pest-X, due to the high amount of fluoride in his system. (R. 12.) The results were inconclusive as to whether the death was a homicide or suicide. (R. 10.) Dr. Fleischer had considered the possibility that Smith died from an opioid overdose when Flores explained that Smith had previously been addicted to Oxycodone, but there were no opioids detected in Smith s system. (R. 11.) On December 5, 2014, Dr. Fleischer was terminated after alcohol was found in his desk. (R. 13.) Following Dr. Fleischer s termination, the laboratory thoroughly reviewed his previous reports and found no indication that alcohol interfered with Dr. Fleischer s work. (R.14.) On October 16, 2014, the Boerum State Police, supervised by Officer Andrew Scott ( Officer Scott ), executed a search warrant in relation to the corruption investigation. (R. 6.) The search warrant authorized a search of all computers in Rutherford s office for information regarding the contract bidding, specifically electronically stored documents created on or before 1 The Boerum State Autopsy Law requires that all autopsy laboratories be equipped with recording devices, but it is up to the medical examiner s discretion to record the autopsy or have another medical examiner observe the examination. B.S.C

10 June 1, (R. 6.) As the Boerum State Police were executing their search warrant, the FBI was simultaneously questioning Rutherford, in his office, about Smith s death. (R. 6.) While Rutherford was being questioned, he claimed that the last time he saw Smith was on August 29, 2014, when they were reviewing documents for the grand jury subpoena in the corruption investigation. (R. 6.) After Officer Scott learned that Smith had died and that the FBI was interviewing Rutherford about his death, he inferred that Smith probably died under suspicious circumstances. (R. 7.) In executing the search warrant, Officer Scott searched Rutherford s account for documents relating to the corruption investigation, but also discovered information he believed related to Smith s death. (R. 7.) When he looked at subject lines that were created after June 1, 2014, Officer Scott learned that Rutherford purchased a poisonous pesticide one week before Smith s death. (R. 7.) Officer Scott believed his search of subject lines was analogous to using a pen register, which does not require a search warrant in emergency situations. 2 (R. 7.) Officer Scott informed federal investigators of his findings. (R. 7.) The Government went to a neutral magistrate judge and explained how the information was obtained. (R. 21.) In reviewing the good faith application, the judge issued a search warrant for Rutherford s computers in relation to Smith s death. (R. 8.) While executing the search warrant, the FBI discovered that days before Smith s death, Rutherford had extensively researched Pest-X, the pesticide found in Smith s system. (R. 19.) In addition, Rutherford had s from Pestex Corporation, the sole manufacturer of Pest-X, confirming purchase and delivery of the pesticide to his address on October 10, 2014, the day 2 An investigative or law enforcement officer who reasonably determines that an emergency situation exists, where installation of a pen register or trap and trace device is required before an authorizing order is issued, can install such a device. In the absence of an authorizing order, such use shall terminate when the information sought is obtained, when the application for the order is denied or when forty-eight hours have lapsed since the installation..., whichever is earlier. 18 U.S.C. 3125(a)-(b) (2016). 3

11 before Flores found Smith dead. (R. 19.) The FBI also discovered a password-protected file containing conversations between Rutherford and various teenage girls possibly as young as 15 in which Rutherford impersonated a teenage boy, as well as pictures of the girls in various stages of undress. (R. 19.) Lastly, the FBI found meta-data indicating that the passwordprotected file was accessed and opened on the same day that Rutherford and Smith reviewed files concerning the corruption investigation subpoena. (R. 19.) Procedural History On January 21, 2015, Rutherford was indicted and charged with intent to prevent the attendance or testimony of Smith in an official proceeding with intent to prevent the communication in violation of 18 U.S.C. 1512(a)(1)(A)-(B). (R. 1.) In preparing for the proceedings on these charges the Government was unable to contact or confirm the availability of Dr. Fleischer to testify at trial. (R. 13.) Instead, the Government retained Dr. Elizabeth Chin ( Dr. Chin ), Assistant Medical Examiner for Cobble County, to offer her independent opinion on the objective findings in Dr. Fleischer s autopsy report. (R. 13.) Rutherford moved to suppress the files and documents obtained from his personal computer. (R. 19.) In addition, Rutherford made two motions in limine, one to exclude Smith s statement about dinner plans with Rutherford and another to exclude Dr. Chin s testimony about the autopsy report. (R. 24, 28.) On July 24, 2015, the United States ( U.S. ) District Court for the Eastern District of Boerum heard oral arguments on the motions. (R. 18.) On July 31, 2015, the District Court granted all of Rutherford s pre-trial motions. (R. 37.) Following the District Court s three rulings and pursuant to 18 U.S.C. 3731, the Government filed an interlocutory appeal with the U.S. Court of Appeals for the Fourteenth Circuit. (R. 41.) On February 9, 2016, the Circuit Court affirmed the District Court in a 2-1 4

12 decision. (R. 41.) The court held that the evidence obtained by Officer Scott did not fall within the good faith exception to the exclusionary rule. (R. 43.) The court further held that Flores statements about Smith s visit with Rutherford the night before his death do not fall under the Federal Rules of Evidence ( FRE ) 803(3) s state of mind exception. (R. 44.) However, the court explicitly stated that a categorical exclusion of such statements whenever offered as proof of a non-declarant s conduct is improper. (R ) Lastly, the court held that Dr. Chin s testimony regarding Dr. Fleischer s report violated the Confrontation Clause. (R. 47.) The dissent asserted that the majority misconstrued the law in affirming the district court s decision. On the first issue, the dissent argued that the deterrent value of suppressing the FBI s use of the state police officer s findings was minor and did not support the purpose of the exclusionary rule. (R ) On the second issue, the dissent argued that the plain meaning of FRE 803(3) allows the admission of Flores statements about Smith s meeting with Rutherford on the night before his death. (R. 49.) Lastly, the dissent argued that Rutherford s Confrontation Clause rights can be adequately protected by having Dr. Chin testify to her own conclusions on the underlying facts of Dr. Fleischer s autopsy report. (R. 50.) Following the Fourteenth Circuit s decision, the Government sought a writ of certiorari to this Court. The writ was granted on October 15, 2016, and certified questions were listed for the three issues decided in the court below. (R. 52.) SUMMARY OF THE ARGUMENT The Fourteenth Circuit incorrectly affirmed the Respondent s motion to suppress and motions in limine. This Court should find that the Respondent s motions should have been denied for the following reasons. 5

13 First, the lower court was incorrect in finding that evidence obtained from Rutherford s computer did not fall within the good faith exception. Rather, the good faith exception, as defined in United States v. Leon, may be appropriately applied where the probable cause supporting the issuance of a search warrant was established with evidence seized in violation of the Fourth Amendment. Although this Court has not explicitly extended the good faith exception to include evidence seized in violation of the Fourth Amendment, the U.S. Constitution and this Court do not mandate suppression of evidence obtained from a ministerial violation of a criminal defendant s constitutional rights. This Court has held that evidence obtained under a search warrant should be suppressed in few instances, where exclusion furthers the purpose of the exclusionary rule. As the dissent in the court below emphasizes, suppression in this case would not serve the deterrent purpose of the exclusionary rule, but would set an unreasonable precedent for future federal criminal prosecutions. Furthermore, this Court has found that warrantless searches are not per se unreasonable to deny the application of the good faith exception. As such, suppression of evidence here would be inconsistent with the exclusionary rule and should be rejected. Second, the lower court was incorrect in granting the Respondent s first motion in limine, because the plain meaning of FRE 803(3) allows for the admission of a declarant s statement of intent, that involves a third-party, to prove both the intent of the declarant as well as provide for an inference that both parties acted on that intent. Additionally, such forward-thinking statements contain indicia of reliability so as to allow for their admission. Third, the lower court was incorrect in granting the Respondent s second motion in limine because a criminal defendant s right to confrontation under Crawford v. Washington is not violated when a surrogate expert provides an opinion based on facts in a report prepared by 6

14 another. Autopsy reports are business records under FRE 803(6) because they are prepared in the ordinary course of business by a medical examiner to memorialize a series of steps taken and facts found. In addition, the primary purpose of an autopsy report is to investigate a death, not to aid in law enforcement, thus they are non-testimonial. As a result, under FRE 703, Dr. Chin s opinion testimony about the facts contained in a non-testimonial business record does not violate the Confrontation Clause. In conclusion, reversing the lower court s decisions is consistent with established laws of evidence and would also support important policy objectives. Balancing law enforcement interests with privacy concerns and individual rights is a crucial process in determining the reasonableness of searches and the admissibility of evidence. Absolute rules of inadmissibility have been considered unreasonable and do not support public policy. In considering the interests of the Petitioner, Respondent, and the forum state, this Court should reverse the decision of the Circuit Court and deny the Respondent s motions. In the alternative, this Court should remand the decision to the District Court with instructions to continue without an evidentiary hearing. ARGUMENT I. APPLICATION OF THE GOOD FAITH EXCEPTION TO THE EXCLUSIONARY RULE IS APPROPRIATE WHERE PROBABLE CAUSE SUPPORTING ISSUANCE OF A SEARCH WARRANT WAS ESTABLISHED WITH EVIDENCE SEIZED IN VIOLATION OF THE FOURTH AMENDMENT. This Court should find that the good faith exception to the exclusionary rule is appropriately applied where probable cause supporting the issuance of a search warrant was established with evidence seized in violation of the Fourth Amendment to the United States ( U.S. ) Constitution, for several reasons. The U.S. Constitution and this Court do not require exclusion for violations of a criminal defendant s constitutional rights. This Court has 7

15 recognized the good faith exception for evidence seized in violation of a criminal defendant s constitutional rights. Finally, this Court has held that warrantless seizures are not per-se unreasonable. A. The Law Does Not Mandate Exclusion for Violations of a Criminal Defendant s Constitutional Rights. The Fourth Amendment guarantees the right to be secure against unreasonable searches and seizures, and states that no warrants shall be issued, but upon probable cause. U.S. CONST. amend. IV. This amendment protects an individual s right to privacy and freedom from unreasonable governmental interference. The Fourth Amendment does not include a provision about suppressing evidence obtained in violation of its guarantees, suggesting there are instances of reasonable government interference. Davis v. United States, 564 U.S. 229, 236 (2011). However, in Mapp v. Ohio, this Court adopted the exclusionary rule, which permits suppression of certain evidence obtained in violation of a criminal defendant s constitutional rights. Mapp v. Ohio, 367 U.S. 643 (1961). This rule does not require suppression of all evidence obtained in violation of a criminal defendant s rights. United States v. Leon 468 U.S. 897 (1984) (establishing the good faith exception to the exclusionary rule). Rather, this Court has repeatedly held the exclusionary rule s sole purpose is to prevent future violations. See Id. at 909, 921 n. 22 (1984); Elkins v. United States, 364 U.S. 206, 217 (1960) (stating [t]he rule is calculated to prevent, not to repair ). As a result, the exclusionary rule must be narrowly used and there are several exceptions to its application, including the good faith exception. i. Evidence obtained under a search warrant should be suppressed in few instances. This Court held that the suppression of evidence obtained under a search warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will 8

16 further the purpose of the exclusionary rule. Leon, 468 U.S. at 918. If the purpose of the exclusionary rule is to deter future violations of a criminal defendant s constitutional rights and the system can only deter those who act intentionally or recklessly, then the suppression of evidence obtained illegally by those acting innocently or negligently would not serve the purpose of the rule. Consequently, exclusion should only be invoked when the benefit of deterrence outweighs the social cost of letting guilty and possibly dangerous defendants go free. Herring v. United States, 555 U.S. 135, 141 (2009) (rejecting exclusion as a necessary consequence of Fourth Amendment violations and finding costs of exclusion outweighed minimal deterrent value). Thus, this Court adopted the good faith exception to prevent the suppression of evidence obtained from a good faith violation of a criminal defendant s constitutional rights. Leon, 468 U.S. at 897. In Leon, the U.S. Court of Appeals for the Ninth Circuit refused to recognize a good faith exception and confirmed the exclusion of evidence illegally obtained pursuant to a search warrant issued by a detached and neutral magistrate judge. United States v. Leon, 701 F.2d 187 (9th Cir. 1983). This Court reversed the case exclusively on the adoption of the good faith exception. Leon, 468 U.S. at 905. Specifically, the question before this Court was not whether a defendant s rights had been violated, but whether exclusion was appropriate when considering the costs and benefits of preventing the use in the prosecution s case in chief of inherently trustworthy tangible evidence obtained in reliance on a search warrant issued by a detached and neutral magistrate that ultimately is found to be defective. Id. at 907; see United States v. Davis, 690 F.3d 226 (4th Cir. 2012). The majority in Leon affirmed that the exclusionary rule is a supplement to the Fourth Amendment and does not create a right to relief for an aggrieved individual. 9

17 ii. The good faith exception is achieved by presenting a transparent search warrant application to a detached and neutral magistrate. This Court s decision in Leon stands for the proposition that good faith can be achieved, for the purposes of the exception to the exclusionary rule, through the actions of agents presenting a clear and honest warrant application to a detached and neutral magistrate judge. Leon, 468 U.S. at 926. In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause. Id. Thus, evidence may not be suppressed on the basis that a judge could find that the officers could have obtained the evidence in another way. See United States v. Sharpe, 470 U.S. 675, (1985) (stating [a] creative judge engaged in post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished ). In this case, under the good faith exception, the government's acknowledgement that Rutherford's Fourth Amendment rights were violated is ancillary when compared to balancing the benefits and costs of suppression with respect to the prosecution's case in chief. (R. 22.) Here, as in Leon, the Government disclosed the violation to the detached and neutral magistrate judge, signaling good faith, and she issued the search warrant. (R. 8, 21.) The officers, in this case, held an objectively reasonable belief in the existence of probable cause based on their knowledge of the relationship between Rutherford and Smith. (R. 7.) As a result, in this case, this Court should refuse suppression of the evidence obtained pursuant to the search warrant. Moreover, this Court should reject the argument that this case aligns with United States v. Herrera, 444 F.3d 1238 (10th Cir. 2006). In Herrera, a state trooper conducted a warrantless search of the defendant s vehicle during a traffic stop. Conversely, in this case, the Officer Scott 10

18 was conducting a legal search of Rutherford s s and negligently searched through the subject lines of s outside of the scope of the warrant. (R. 7.) After the Herrera decision, this Court specifically rejected the argument that law enforcement error arising from nonrecurring and attenuated negligence triggers the exclusionary rule. Herring, 555 U.S. at 144. In such a case, the criminal should not go free because the constable has blundered. Id. at 148 (quoting Justice Cardozo s opinion in People v. Defore, 150 N.E. 585, 587 (N.Y. 1926)). iii. Application of the good faith exception in Ganias is analogous to this case. In United States v. Ganias, the U.S. Court of Appeals for the Second Circuit expanded the good faith exception and this Court denied certiorari. United States v. Ganias, 824 F.3d 199 (2d Cir. 2016) cert. denied, U.S., 2016 WL (Dec. 5, 2016). In that case, the government obtained a search warrant for the defendant s computer records from a detached and neutral magistrate judge. United States v. Ganias, 824 F.3d 199, 201 (2d Cir. 2016). While executing the warrant, the Government recovered responsive and non-responsive data, but retained the full records. Id. at 200. Later, the government obtained judicial authorization to reexamine the non-responsive data pursuant to subsequent, unrelated charges. Id. at 227. The court held that the government s subsequent search of non-responsive data and good faith reliance on the second search warrant prevented exclusion. Id. at 200. This Court declined to review the Ganias decision and should find, as in Ganias, that Officer Scott did not have significant reason to believe that what he had done was unconstitutional and that the Boerum State Police acted in good faith reliance on the neutral magistrate s subsequent search warrant. As a result, the evidence obtained should not be suppressed. 11

19 B. This Court Has Found that Warrantless Searches Are Not Per Se Unreasonable. This Court has found that warrantless searches are not per se unreasonable to warrant a violation of the good faith exception to the exclusionary rule. This Court held that it could not say that a warrantless search is per se unreasonable under exigent conditions. See United States v. New Hampshire, 403 U.S. 443, 468 (1971) (holding that exigent circumstances justify warrantless searches); see also Illinois v. McArthur, 531 U.S. 326, 331 (2001) (finding that refusal to allow defendant to enter residence without a police officer until a search warrant was obtained was reasonable and did not violate the Fourth Amendment). This Court has consistently held that exigent circumstances, including the need to prevent the destruction of evidence, permit police officers to conduct an otherwise permissible search without first obtaining a warrant. Kentucky v. King, 563 U.S. 452, 455 (2011). To determine if a warrantless search is reasonable, the court balances privacy-related and law enforcement-related concerns. Id. at 326. Some of these concerns include, whether the police had probable cause to believe the defendant possessed evidence of a crime; whether the police had good reason to fear that the defendant would destroy the evidence before the police could return with a warrant; and whether the police made reasonable efforts to reconcile law enforcement needs with privacy demands, among other things. Id. at Here, the Officer Scott knew that the FBI was questioning Rutherford about Smith s death and reasonably inferred that the death was suspicious. (R. 7.) Accordingly, as in McArthur, the officer had probable cause to believe that Rutherford s computer contained information relating to the crime. Additionally, Officer Scott had good reason to fear that Rutherford may destroy the s before police could obtain a warrant because the FBI was questioning Rutherford about Smith s death while the state police were searching his computer 12

20 in relation to the corruption investigation. (R. 6.) Still acting in consistence with the requirements outlined in McArthur, the state police made reasonable efforts to reconcile their needs with the demands of personal privacy. The officers did not search the rest of the office computers for information on Smith s death, nor did the officers arrest Rutherford before obtaining a search warrant and explaining the circumstances to a detached and neutral magistrate judge. If this is still insufficient, this Court has allowed the admission of evidence obtained from warrantless searches in other instances. In Nix v. Williams, this Court indicated that evidence obtained from unlawful police activity may be admissible if the criminal investigation would have inevitably resulted in discovery of the evidence in question. Nix v. Williams, 467 U.S. 431 (1984). Suppression, in these circumstances, would do nothing whatever to promote the integrity of the trial process, but would inflict a wholly unacceptable burden on the administration of criminal justice. Id. at 447. The purpose of the inevitable discovery doctrine is to prevent the setting aside of a conviction that would have been obtained regardless of police misconduct. Id. at 443 n.4. The burden of persuasion for this rule rests on the prosecution to establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means. Id. at 444. Here, it would have been more probable than not that the Boerum State Police or the FBI would have obtained a search warrant to search Rutherford s computers for information regarding Smith s death. This is especially true because, on October 16, 2014, the day of the execution of the State s search warrant, Rutherford told FBI Agent Loyal that the last time he had been with Smith was when the two were reviewing documents on his laptop regarding the federal grand jury subpoena for the state corruption investigation. (R. 6.) Thus, it is reasonable 13

21 to assume that law enforcement officials would have requested a search warrant for Rutherford s computers to uncover information about Smith s death during the same period as what occurred. For the above reasons, this Court should find that the good faith exception to the exclusionary rule applies where probable cause supporting issuance of a search warrant was established with evidence seized in violation of the Fourth Amendment. II. A RELEVANT STATEMENT OF A DECLARANT S THEN-EXISTING STATE OF MIND IS ADMISSIBLE TO PROVE THE DECLARANT S INTENT AS WELL AS THE ACTIONS OF A THIRD PARTY. Federal Rule of Evidence 803(3) provides that [a] statement of the declarant s thenexisting state of mind (such as motive, intent, or plan)... but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant s will is not excluded by the rule against hearsay. Fed. R. Evid. 803(3). The circuit courts are divided on how FRE 803(3) applies to the use of a declarant s statement against a third-party. United States v. Houlihan, 871 F. Supp 1495, 1498 (D. Mass. 1994). The Ninth Circuit admits such statements as proof of a third-party s conduct. United States v. Pheaster, 544 F.2d 353 (9th Cir. 1976). The Second and Fourth Circuits admit a declarant s statement as proof of third-party conduct only if there is corroborating evidence. United States v. Nersesian, 824 F.2d 1294 (2d Cir. 1987); United States v. Jenkins, 579 F.2d 840 (4th Cir. 1978). The First, Third, and Tenth Circuits limit the use of a declarant s statements as proof only of the declarant s acts. United States v. Joe, 8 F.3d 1488 (10th Cir. 1993); Gual Morales v. Hernandez Vega, 579 F.2d 677 (1st Cir. 1978); Baughman v. Cooper-Jarrett, Inc., 530 F.2d 529 (3d Cir. 1976). For the following reasons, this Court should adopt the reasoning of the Ninth Circuit and hold that a declarant s statements can be admitted as proof of a non-declarant s conduct. 14

22 A. The Text of Rule 803(3) is Clear on Its Face and As Such Smith s Statements Are Admissible as Evidence of the Defendant s Conduct. In 1975, Congress codified the rule laid out in Mutual Life Ins. Co. v. Hillmon ( the Hillmon Doctrine ) in Rule 803(3) to the Federal Rules of Evidence. Houlihan, 871 F. Supp. at 1498; See Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285 (1892). Although the text of Rule 803(3) seems clear on its face, courts have struggled to apply the rule with consistency due in part to its conflicting legislative history. Houlihan, 871 F. Supp. at The House Committee on the Judiciary stated that it intended for Rule 803(3) be construed to limit the doctrine of Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285, (1892), so as to render statements of intent by a declarant admissible only to prove his future conduct, not the future conduct of another person. H.R. REP. No. 650, 93rd Cong., 1st Sess. (1973). However, the Advisory Committee notes state a very different proposition, suggesting that Hillmon Doctrine be left undisturbed. Fed. R. Evid. 803 advisory committee s notes to exception 3. In deciding the scope of Rule 803(3) and whether credence should give given to the rule s legislative history, this Court must first look to the text of 803(3) to determine if it is ambiguous. United States v. Turkette, 452 U.S. 576, 580 (1981) (stating that [i]n determining the scope of a statute, [the court] look[s] first to its language ). When statutory language is reasonably definite, that language must ordinarily be regarded as conclusive. United States v. Charles George Trucking Co., 823 F.2d 685, 688 (1st Cir. 1987). Legislative history should be consulted if, and only if, the literal words of the statute create ambiguity or lead to an unreasonable interpretation. Araya v. McLelland, 525 F.2d 1194, (5th Cir. 1976). The language of Rule 803(3) is not ambiguous nor does it create an unreasonable interpretation. (R. 49.) Therefore, this Court should not consider the Rule s legislative history and consequently 15

23 should hold that, because the text of the rule is clear, a declarant s statement of intent is admissible to prove both the declarant s actions as well as the actions of a non-declarant. A statute is ambiguous only if the meaning of the words is in dispute. Houlihan, 871 F. Supp. at 1501 n.4. Conflicting views on a statute s applicability do not make it ambiguous. Id. Rule 803(3) states that a then-existing mental, emotional or physical condition can be demonstrated by [a] statement of the declarant s then-existing state of mind (such and motive, intent or plan). Fed. R. Evid. 803(3). The state of mind of the declarant is then used inferentially to prove other matters which are in issue [in the case]. Pheaster, 544 F.2d at376. Since Rule 803(3) is unambiguous, Smith s statement that he was going to meet Rutherford at the Governor s apartment for dinner should be admissible because it expresses Smith s intent to perform an act. (R. 5.) This is not a statement of memory, which is excluded from the rule, but rather it is a statement regarding something that Smith was planning on doing in the future. Pheaster, 544 F.2d at379. Thus, this statement is within the purview of Rule 803(3) and is admissible based on the rule s plain language. B. Smith s Statement that He was Going to the Defendant s for Dinner is Competent Evidence that They Did In Fact Meet Because Such Statements Contain a High Degree of Trustworthiness. In 1892, this Court held that a declarant's statement of intent to act with another person is competent proof that the declarant did in fact follow through with his or her intended act and that the other person did too. See Hillmon, 145 U.S. at 285. In Hillmon, the declarant sent letters to his wife stating that he was heading to Crooked Creek with a man named Hillmon. Id. at Later, a body was found at Crooked Creek and the declarant's wife attempted to introduce those letters as evidence that the body was that of her husband. Id. The court held that, not only were the letters competent evidence that the declarant went to Crooked Creek, they also tended to 16

24 show that Hillmon went to Crooked Creek as well. Id. at 296. The declarant's stated intention "made it more probable both that he did go [to Crooked Creek] and that he went with Hillmon than if there had been no proof of such intention." Id. In Hillmon, this Court held that a declarant s statement of intent is competent evidence of the declarant s stated intention and that he or she followed through with that intention. Id. at (stating [t]he letters in question were competent not as narratives of facts communicated to the writer by others, nor yet as proof that he actually went away from Wichita, but as evidence that, shortly before the time when other evidence tended to show that he went away, he had the intention of going, and of going with Hillmon, which made it more probably both that he did go and that he went with Hillmon ). Such declarations are regarded as verbal acts, and are as competent as any other testimony, when relevant to the issue. Id. at 296. In Pheaster, the declarant disappeared after leaving his group of friends at a restaurant. Pheaster, 544 F.2d at 358. The declarant left with the expressed intention of meeting a man named Angelo. Id. The court admitted the declarant s statements as proof that the declarant did in fact meet Angelo. The court held that arguments that such a statement was unreliable were not [ ] compelling Id. at 376; see also Terranova v. Kincheloe, 852 F.2d 424, 427 (9th Cir. 1988) (holding that these statements meet[] the indicia reliability because [they] fall within a firmly rooted hearsay exception ). In the present case, on the night that Smith died, he stated to Flores his intention to go to Rutherford s apartment. (R. 5.) This statement meets the indicia of reliability required for admission because it is more likely than not, that after expressing a future intent to have dinner with Rutherford, Smith followed through. See Hillmon, 145 U.S. at 296. This Court should not impose an obstacle to admissibility that is not found in FRE 803(3) because if Congress had intended such a limitation, it would have been included in the text of the 17

25 rule. Houlihan, 871 F. Supp. at Therefore, this Court should find that Smith s statement to Flores is admissible. III. A CRIMINAL DEFENDANT S RIGHT TO CONFRONTATION IS NOT VIOLATED WHEN A SURROGATE MEDICAL EXAMINER PROVIDES AN OPINION BASED ON AN AUTOPSY REPORT PREPARED BY ANOTHER MEDICAL EXAMINER IN THE ORDINARY COURSE OF BUSINESS BECAUSE AUTOPSY REPORTS ARE BUSINESS RECORDS. FRE 703 provides that [a]n expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. Fed. R. Evid This rule contemplates the various ways in which an expert may form an opinion: from the expert s firsthand observations, a presentation of facts to the expert at trial, or a presentation of facts or data to the expert outside of court. Fed. R. Evid. 703 advisory committee s note. This rule allows an expert to review documents prepared by another and testify as to their own opinions and conclusions based on those documents. Williams v. Illinois, 132 S. Ct. 2221, 2233 (2012) (stating that [i]t has long been accepted that an expert witness may voice and opinion [ ] even if the expert lacks first-hand knowledge of those facts ). If the expert s testimony is identical to the conclusions made in a document and the original author is unavailable, the underlying opinions upon which the surrogate expert s testimony is based, must satisfy the Confrontation Clause of the Sixth Amendment. Id. at The Confrontation Clause to the Sixth Amendment requires that a defendant in a criminal prosecution have the right to be confronted with the witnesses against him. U.S. CONST. amend. VI. This Court interpreted that to mean that if a witness provides testimonial evidence, or [a] solemn declaration or affirmation made for the purpose of establishing or proving some fact, the defendant must be able to cross examine that witness. Crawford v. Washington,

26 U.S. 36, 51 (2004) (internal citations omitted). Thus, if an expert is basing his or her opinion on non-testimonial statements made by an unavailable witness, the defendant s confrontation rights remain intact. Although Crawford provided examples of types of testimonial evidence, this Court did not provide an exhaustive list or precise definition for such evidence. Davis v. Washington, 547 U.S. 813, 822 (2006). Since this Court decided Crawford in 2004, the classification of evidence as either testimonial or non-testimonial has been rather nebulous. In 2006, this Court decided Davis v. Washington, and clarified the meaning of testimonial evidence. See Davis, 547 U.S. at 813. Davis dealt with two cases Davis v. Washington and Hammon v. Indiana and both contemplated whether statements made to police in a 911 call and at the scene of an alleged crime, respectively, were testimonial. Id. [S]tatements are non-testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. Id. at 822. Where the primary purpose of an interrogation is to establish facts to be used at trial however, the statement is testimonial. Id. Post-Crawford, this court has had occasion to rule on whether various types of scientific evidence are testimonial. In Melendez-Diaz v. Massachusetts, this Court held that a BAC test report was testimonial and was inadmissible unless the person who prepared the report could be cross-examined. Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). In Bullcoming v. New Mexico, this Court held that a forensic lab report prepared for trial was testimonial. Bullcoming v. New Mexico, 564 U.S. 647 (2011). In Williams v. Illinois, the plurality held that out of court statements made by a medical examiner could be introduced at trial to explain or give an opinion about a DNA lab report because the report was non-testimonial. Williams, 132 S. Ct. at In 19

27 all three of these cases, the evidence in question fit under the business record exception. United States v. James, 712 F.3d 79, 94 (2d Cir. 2012). In spite of this classification however, the Court in Melendez-Diaz and Bullcoming determined that the evidence was testimonial because the evidence was made or prepared for the purpose of proving some fact at trial. Id. The plurality in Williams approached the issue differently and held that the lab report was admissible because it was not offered for its truth. Id. at 92. This Court has yet to determine, however, whether autopsy reports are testimonial or non-testimonial evidence. The decisions in Williams, Bullcoming, and Melendez-Diaz have created some confusion in the circuit courts. James, 712 F.3d at The First, Second, and Ninth Circuits regard autopsy reports as business records which are non-testimonial. See United States v. De La Cruz, 514 F.3d 121 (1st Cir. 2008) (holding that autopsy reports are made in the ordinary course of business and are therefore business records); United States v. Feliz, 467 F.3d 227 (2d Cir. 2006) (holding that autopsy reports are non-testimonial because they are not performed solely for use at trial and that they are admissible as business records, which fall outside of the realm of testimonial evidence); Vega v. Walsh, 669 F.3d 123 (2d Cir. 2012) (holding that while autopsies are frequently used in criminal prosecutions, they are performed for various other reasons to determine cause of death and are admissible as business records); McNeiece v. Lattimore, 501 F. App x 634 (9th Cir. 2012) (holding that an autopsy report is non-testimonial and a medical examiner, who did not preform the autopsy in the report, can testify about the report at trial). The Eleventh Circuit, on the other hand, treats autopsy reports as testimonial evidence. See United States v. Ignasiak, 667 F.3d 1217 (11th Cir. 2012) (holding that five autopsy reports admitted into evidence in conjunction with doctor s testimony, who did not participate in the autopsies, violated the Confrontation Clause). This Court should adopt the reasoning of the 20

28 First, Second, and Ninth Circuits and find that autopsy reports are non-testimonial because they qualify as business records under FRE 803(6). A. An Autopsy Report is Non-Testimonial and Admissible as a Business Record under Federal Rule of Evidence 803(6). Under FRE 803(6), evidence qualifies as a business record if it is made at or near the time by... someone with knowledge; [is] kept in the course of a regularly conducted activity of a business ; [and] making the record was a regular practice of that activity. Fed. R. Evid. 803(6). Autopsy reports are business records because [they are] made in the ordinary course of business by a medical examiner who is required by law to memorialize what he or she saw and did during an autopsy. An autopsy report thus involves, in principal part, a careful and contemporaneous reporting of a series of steps taken and facts found by a medical examiner during an autopsy. De La Cruz, 514 F.3d at133. Rule 803(6) requires that, in order to qualify as a business record, a document be kept in the regular course of business. Fed. R. Evid. 803(6). Therefore, if a record is kept in the regular course of business, it is not created in anticipation of litigation and falls outside of the scope of the Confrontation Clause. Feliz, 467 F.3d at 234 (stating that [b]ecause business records cannot be made in anticipation of litigation or include observations made by law enforcement personnel, they bear little resemblance to the civil-law abuses the Confrontation Clause targeted ) (internal citations omitted). Autopsy reports are non-testimonial even if the declarant is aware that the report might someday be used in a trial. James, 712 F.3d at 89. Thousands of autopsies are performed each year without regard to their likelihood of their use at trial. Feliz, 467 F.3d at 236. [A]lthough autopsies are often used in criminal prosecutions, they are also prepared for numerous other reasons including the determination of cause of death when there is no anticipation of use of the autopsy in any kind of court proceeding. Vega, 669 F.3d at

29 In United States v. Feliz, the defendant was being tried for homicide as well as various other charges. Feliz, 467 F.3d at 229. In order to establish the manner and cause of death of the victims, the government introduced nine autopsy reports and had a doctor, who did not perform the autopsies, testify at the trial. Id. The defendant argued on appeal that the court erred in admitting the autopsy reports because they violated his Sixth Amendment rights because he did not have an opportunity to cross-examine the medical examiner who prepared the reports. Id. at 230. The court held, however, that that the autopsy reports were admissible as business records. Id. at 233. [A] statement properly admitted under Fed. R. Evid. 803(6) cannot be testimonial because a business record is fundamentally inconsistent with what the Supreme Court has suggested comprise the defining characteristics of testimonial evidence. Id. Similarly in Vega v. Walsh, the defendant was convicted of murder. Vega, 669 F.3d at 125. In his habeas petition, the defendant claimed that the testimony of a medical examiner about an autopsy she did not perform violated his Sixth Amendment rights. Id. The court in Vega held that the lower court s finding that the autopsy report was a business record was not unreasonable because autopsies are performed for many different reasons, including but not limited to litigation. Id. at 128. In the present case, the Boerum State Autopsy Law (B.S.C ) provides for eleven situations in which the State Medical Examiner should be notified. (R. 9.) These situations include: sudden deaths when the decedent had been in apparent good health; suspicious deaths; when the death resulted from drug use or poisons; when the decedent was not attended by a physician; when the decedent s body is to be cremated, dissected, buried at at sea; and others. (R. 9.) If any of these circumstances are present, it is in the sole discretion of the Chief Medical Examiner to determine whether or not an autopsy is required. (R. 9.) None of 22