Supreme Court of the United States

Transcription

1 Team 21R No IN THE Supreme Court of the United States October Term 2017 UNITED STATES OF AMERICA, Petitioner, v. PAUL RUTHERFORD, Respondent. On Writ of Certiorari to the United States Court of Appeals for the Fourteenth Circuit BRIEF FOR RESPONDENTS Team 21R COUNSEL FOR RESPONDENT

2 TABLE OF CONTENTS TABLE OF AUTHORITIES...iv QUESTIONS PRESENTED...1 OPINIONS BELOW...2 CONSTITUTIONAL PROVISIONS AND STATUTES...2 STANDARD OF REVIEW...2 STATEMENT OF THE CASE...2 SUMMARY OF THE ARGUMENT...6 ARGUMENT...8 Page I. THE GOOD FAITH EXCEPTION ESTABLISHED IN UNITED STATES V. LEON SHOULD NOT APPLY TO ILLEGAL PREDICATE SEARCH WARRANTS, BUT EVEN IF THIS COURT FINDS THAT THE GOOD FAITH EXCEPTION DOES APPLY, THE REQUIREMENTS ARE NOT MET IN THIS CASE...8 A. This Court should not extend the good faith exception to illegal predicate searches because it stands in direct conflict with the premises established in Leon and doing so would encourage police officers to use illegal search tactics and seek refuge behind the good faith exception...9 i. While this Court has not ruled on whether the good faith exception applies, a number of circuit courts have correctly found that the good faith exception should not apply to illegal predicate searches...10 ii. The good faith exception should not be extended because it directly conflicts with the premises established in Leon...11 iii. Finding that the good faith exception does not apply to illegal predicate searches would have the beneficial effect of requiring police officers to determine whether a search is illegal prior to conducting the search...12 B. Even if this Court holds that the good faith exception applies to the exclusionary rule, the requirements are not met in this case...14 i

3 II. FEDERAL RULES OF EVIDENCE 803(3) PERMITS THE ADMISSION OF A STATEMENT OF A DECLARANT S THEN-EXISTING STATE OF MIND TO PROVE CONDUCT OF A THIRD PARTY ONLY IF INDEPENDENT CORROBORATING EVIDENCE IS OFFERED AS A FOUNDATION AND BECAUSE SUCH EVIDENCE IS NOT PRESENT HERE, THE STATEMENT SHOULD BE EXCLUDED...16 A. This Court should adopt the Second Circuit s holding and find that 803(3) permits the admission of a statement of a declarant s then-existing state of mind to prove conduct of a third party only if independent corroborating evidence is offered as foundation for the statement because it renders the statement reliable and balances the interests of the government and the defendant...17 i. While this Court has not ruled on whether 803(3) permits the admission of a statement of a declarant s then-existing state of mind to prove conduct of a third party, there is a split among the circuit courts of appeal...18 ii. The plain text of the 803(3) is ambiguous and the legislative history offers no guidance or assistance...19 iii. The Second Circuit s approach supports the purpose behind the hearsay rule and allows trustworthy and reliable statements to come into evidence...20 iv. Finding that 803(3) permits the admission of a declarant s then existing state of mind, where there is no corroborating evidence to prove conduct of a third party, balances the interests of both the defendant and the government...22 B. Federal Rule of Evidence 803(3) permits the admission of a statement of a declarant s then-existing state of mind to prove conduct of a third party only if independent corroborating evidence is offered as a foundation; because such evidence is not present here, the statement should be excluded...23 III. THE CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT DOES NOT PERMIT AN EXPERT WITNESS, AS DEFINED FEDERAL RULES OF EVIDENCE 703, TO TESTIFY TO A JURY ABOUT THE OUT-OF-COURT OBSERVATIONS MADE BY A NON-TESTIFYING FORENSIC ANALYST, WHEN THE EXPERT NEITHER PERFORMED NOR OBSERVED THE FORENSIC PROCEDURES UNDERLYING THE ASSERTIONS...24 A. This Court should adopt the Second Circuit s holding and find that 803(3) permits the admission of a statement of a declarant s then-existing state of mind to prove conduct of a third party only if independent corroborating evidence is ii

4 offered as foundation for the statement because it renders the statement reliable and balances the interests of the government and the defendant...24 i. Autopsy reports are testimonial in nature...24 ii. Surrogate testimony of autopsy reports violates the Confrontation Clause because autopsy reports are solemn declarations or affirmations made for the purpose of proving some fact and are therefore functionally identical to live, in-court testimony...25 iii. The scientific nature of forensic reports does not justify subjecting them to lesser standard of scrutiny than other testimonial evidence...27 iv. This Court s holding in Williams does not narrow the precedent of Crawford, Melendez-Diaz, and Bullcoming...28 B. The autopsy report is testimonial hearsay in violation of Respondent s Sixth Amendment rights and is therefore also inadmissible under both Federal Rules of Evidence 703 and i. The Confrontation Clause of the Sixth Amendment does not permit an expert, as defined by Rule 703, to testify as to an autopsy procedure they neither witnessed nor performed...29 ii. Rule 803 does not permit autopsy reports to be admissible because autopsy reports are regularly conducted for the purposes of being produced as evidence for trial...30 C. There is a strong policy argument for requiring that statements in autopsy reports be subject to cross-examination...32 i. Autopsy reports are not an exact science and are subject to human error, bias, and mistake making cross-examination of the analyst who prepared the report necessary...32 CONCLUSION...34 iii

5 TABLE OF AUTHORITIES Page(s) UNITED STATES SUPREME COURT CASES Alden v. Maine, 527 U.S. 706 (1999)...30 Arizona v. Evans, 514 U.S. 1 (1995)...12 Arizona v. Hicks, 480 U.S. 321 (1987)...11 Bourjaily v. United States, 483 U.S. 171 (1987)...19 Bullcoming v. New Mexico, 564 U.S. 647 (2011)...27 Crawford v. Washington, 541 U.S. 36 (2004)...25, 32 Davis v. Alaska, 415 U.S. 308 (1974)...25 Davis v. Washington, 547 U.S. 813 (2006)...25 Huddleston v. United States, 485 U.S. 681 (1988)...20 Illinois v. Krull, 480 U.S. 340 (1987)...12 Mapp v. Ohio, 367 U.S. 643 (1961)...8 Marks v. U.S., 430 U.S. 188 (1997)...29 Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009)...26, 31 iv

6 Mut. Life Ins. Co. v. Hillmon, 145 U.S. 285 (1892)...17, 18 Palmer v. Hoffmann, 318 U.S. 109 (1943)...31 Printz v. United States, 521 U.S. 898 (1997)...30 Smith v. United States, 348 U.S. 147 (1954)...23 S. Union Co. v. United States, 567 U.S (2012)...28, 30 Weeks v. United States, 232 U.S. 383 (1914)...8 White v. Illinois, 502 U.S. 346 (1991)...26, 28 United States v. Calandra, 414 U.S. 338 (1974)...8 United States v. Leon, 468 U.S. 897 (1984)...8, 11, 12 UNITED STATES CIRCUIT COURT CASES Baughman v. Cooper-Jarrett, Inc., 530 F.2d 529 (3d Cir. 1976)...17, 19 Croker v. Boeing Co. (Vertol Division), 662 F.2d 975 (3d Cir. 1981)...17 Gual Morales v. Hernandez Vega, 579 F.2d 677 (1st Cir. 1978)...17, 19 United States v. Best, 219 F.3d 192 (2d Cir. 2000)...17, 23 United States v. Calvert, 523 F.2d 895 (8th Cir. 1975)...17, 19 United States v. Cicale, 691 F.2d 95 (2d Cir. 1982)...23, 24 v

7 United States v. Delvecchio, 816 F.2d 863 (2d Cir. 1987)...24 United States v. Diehl, 276 F.3d 32 (1st Cir. 2002)...9, 10 United States v. Fletcher, 91 F.3d 48 (8th Cir. 1996)...13 United States v. Herrera, 444 F.3d 1238 (10th Cir. 2006)...13 United States v. Jenkins, 579 F.2d 840 (4th Cir. 1978)...17, 19 United States v. Joe, 8 F.3d 1488 (10th Cir. 1993)...17, 19 United States v. Massi, 761 F.3d 512 (5th Cir. 2014)...9, 10, 14 United States v. McClain, 444 F.3d 556 (6th Cir. 2005)...9, 10 United States v. McGough, 412 F.3d 1232 (11th Cir. 2005)...9, 10, 12 United States v. Pheaster, 544 F.2d 353 (9th Cir. 1976)...passim United States v. Scales, 903 F.2d 765 (10th Cir. 1990)...9, 10 United States v. Sperling, 726 F.2d 69 (2d Cir. 1984)...17, 19, 24 United States v. Soto, 720 F. 3d. 51 (1st Cir. 2013)...33, 34 United States v. Thomas, 757 F.2d 1359 (2d Cir. 1985)...9, 10, 11, 13 United States v. Thornton, 746 F.2d 39 (D.C. Cir. 1984)...9, 10 vi

8 United States v. Vasey, 834 F.2d 782 (9th Cir. 1987)...9, 10, 11, 12 United States v. White, 890 F.2d 1413 (8th Cir. 1989)...9, 10 STATE COURT CASES Commonwealth v. Nardi, 452 Mass. 379 (2008)...25 In re United States, 416 F. Supp. 2d 13 (D.D.C. 2006)...15, 16 People v. Dungo, 55 Cal. 4th 608 (2012)...30 People v. Lopez, 55 Cal. 4th 569 (2012)...29 People v. Machupa, 7 Cal. 4th 614 (1994)...11, 12 Smith v. State, 898 So. 2d 907 (Ala Crim. App. 2004)...31 State v. Carter, 69 Ohio St. 3d 57 (1994)...11 State v. Hicks, 146 Ariz. 533 (Ct. App. 1985)...11 State v. DeWitt, 184 Ariz. 464 (1996)...10 State v. Reno, 260 Kan. 117 (1996)...10, 11 State v. Richards, 552 N.W.2d 197 (Minn. 1996)...21 State v. Sharbono, 175 Mont. 373 (1977)...21 Terrovona v. Kincheloe, 852 F.2d 424 (9th Cir. 1988)...20 vii

9 United States v. Villard, 678 F. Supp. 483 (D.N.J. 1988)...10 CONSTITUTIONAL PROVISIONS U.S. Const. Amend. IV...8 Amend. VI...16 Amend. XI...25 STATUTES 18 U.S.C. 3127(3), (4) (1986)...15 FEDERAL RULES OF EVIDENCE Fed. R. Evid. 703 (1975)...30 Fed. R. Evid. 801 (1975)...16, 21 Fed. R. Evid. 803(3) (1975)...passim Fed. R. Evid. 803(6) (1975)...30 OTHER AUTHORITIES Allowable Use of Federal Pen Register and Trap and Trace Device to Trace Cell Phones and Internet Use, 15 A.L.R. Fed. 2d Andrew Z. Lipson, The Good Faith Exception As Applied to Illegal Predicate Searches: A Free Pass to Institutional Ignorance, 60 Hastings L.J (2009)...8 Brandon L. Garrett & Peter J. Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions, 95 Va. L. Rev. 1 (Mar. 2009)...33 Dep t of Just., National Institute of Justice, Death Investigation: A Guide for the Scene Investigator (June 2011), available at htm...32, 33 Grimm, Deise, & Grimm, The Confrontation Clause and the Hearsay Rule: What Hearsay Exceptions Are Testimonial (2010) 40 U. Balt. L.F viii

10 H.R. Rep. No. 650, 93d Cong., 2d Sess. 13 (1974), reprinted in 1974 U.S.C.C.A.N. 7075, Joseph A. Devall, Jr., Whether Federal Rule of Evidence 803(3) Should Be Amended to Exclude Statements Offered to Prove the Subsequent Conduct of a Nondeclarant: Guidance from Louisiana, 78 Tul. L. Rev. 911 (2004)...passim J. Broocks Greer, III, Comment, Hearsay, The Confrontation Guarantee and Related Problems, 30 La. L. Rev. 651 (1970)...16, 20 Kenneth C. Malcom, Illegal Predicate Searches and the Good Faith Exception, 2007 U. III. L. Rev. 467, 474 (2007)...passim Lynn McLain, I m Going to Dinner with Frank : Admissibility of Nontestimonial Statements of Intent to Prove the Actions of Someone Other Than the Speaker-and the Role of the Due Process Clause, 32 Cardozo L. Rev. 373 (2010)...22, 23 Maurice Levin, The Medicolegal Autopsy Science Aids the Lawyer, Ins. L.J. 274 (1964)...29 Peter M. Leth, Interobserver Agreement of the injury Diagnosis Obtained by Postmortem Computed Tomography of Traffic Fatality Victims and a Comparison with Autopsy Reports, 225 Forensic Sci. Int l 15 (2013)...32 Ross M. Oklewicz, Expanding the Scope of the Good-Faith Exception to the Exclusionary Rule to Include A Law Enforcement Officer s Reasonable Reliance on Well-Settled Case Law That Is Subsequently Overruled, 59 Am. U. L. Rev (2010)...12, 13 Stefan Timmerans, Postmortem: How Medical Examiners Explain Suspicious Deaths (2006)...33 Vernard Irvine Adams, Guidelines for Reports by Autopsy Pathologists, 1 (2008)...32 ix

11 QUESTIONS PRESENTED I. Does the good faith exception apply to illegal predicate searches even though the search was presumptively unreasonable under the Fourth Amendment and police officers are only allowed to reasonably rely on a magistrate s determination of probable cause, legislatures for permission to search, and clerical workers for information on outstanding warrants? II. III. Whether Federal Rules of Evidence 803(3) allows for the admission of a declarant s thenexisting state of mind to prove conduct of a third party even if the statement is untrustworthy, unreliable, and is sufficient to such prove conduct. Under the Sixth Amendment, does Federal Rule of Evidence 703 permit an expert witness to testify to a jury about the out-of-court observations made by a non-testifying forensic analyst, when the expert neither performed nor observed the forensic procedures underling the assertions against the accused? 1

12 OPINIONS BELOW The order from the Supreme Court granting certiorari is unreported and appears in the Record at 52. The opinion of the United States Court of Appeals for the Fourteenth Circuit is also unreported and appears in the Record at CONSTITUTIONAL AND STATUTORY PROVISIONS This case involves the Fourth Amendment and Federal Rule of Evidence 803(3), (6). This case also involves Federal Rule of Evidence 703 and the Sixth Amendment. STANDARD OF REVIEW The Supreme Court reviews issues of law de novo. Pierce v. Underwood, 478 U.S. 522, 558 (1988). STATEMENT OF THE CASE Statement of the Facts A grand jury issued an indictment against Paul Rutherford ( Rutherford ), the Governor of the State of Boerum, relating to the commission or possible commission of a Federal offense, in violation of 18 U.S.C. 1512(a)(1). R. at 1. Petitioner seeks to admit the following evidence at trial: evidence obtained outside the scope of a search warrant (R. at 7), hearsay under Federal Rule of evidence 803(3) (R. at 5), and expert witness testimony offered under Federal Rule of Evidence 703 from a witness who neither conducted nor witnessed the autopsy. R. at Rutherford was elected Governor of the State of Boerum in R. at 3. His campaign included promises to renovate the Cobble Hill Bridge and its surrounding areas (the Project ), a multi-million dollar endeavor, receiving federal and state grants. Id. In 2013, contracts worth more than one hundred million dollars were submitted for bid. Id. Bidders who were not 2

13 selected alleged that the bidding process was rigged, claiming that Rutherford s friends and campaign contributors were given special treatment. Id. The United States Attorney s Office and the FBI began an investigation into these allegations. R. at 4. Special agent Ian Loyal ( Loyal ) was assigned to the investigation. Id. Shortly after, the Boerum State Attorney General and the Boerum State Police individually commenced an investigation of their own. R. at 4. The U.S. Attorney s Office interviewed Victor Smith ( Smith ), Rutherford s top aide, and confronted him with incriminating evidence about his role in the Project. Id. Smith s attorney, Justin Baker ( Baker ), attended the interview with Smith. Id. Smith eventually signed a cooperation agreement offering him immunity from prosecution on the condition that he disclose all information and any criminal wrongdoing by public officials about which he knew or would come to know. Id. On August 29, 2014, the U.S. Attorney s Office issued a grand jury subpoena for all electronic documents stored on Rutherford s computer relating to the Project. Id. Smith was subpoenaed to testify before the grand jury on October 16, Id. On October 10, 2014, Smith spoke to his fiancé, Anita Flores ( Flores ), and told her that he was going to meet Rutherford at the Rutherford s apartment for dinner and drinks. R. at 5. Rutherford later testified that the last time he saw Smith was prior to August, R. at 6. On October 11, 2014, Flores arrived at Smith s apartment early in the morning and found him dead in his bedroom. Id. FBI Agents interviewed Flores. R. at 5. Flores indicated that sometime in September 2014, Smith had told her he had found some upsetting information about Rutherford on Rutherford s laptop, but that she did not know what the information was. Id. The Boerum State Police executed a search warrant and searched the computers in Rutherford s office. R. at 6. State police officer, Andrew Scott ( Scott ), supervised the search. Id. The 3

14 search warrant only authorized the computer search for information relating to the Project created on or before June 1, 2014, when all bids in the Project had been submitted. R. at 6-7. While at Rutherford s office, Loyal informed Scott that the FBI was there to question Rutherford about Smith s death. R. at 6. When Scott heard this, he was suspicious and immediately inferred that Smith likely died under suspicious circumstances. R. at 7. Scott was aware that the warrant was limited to electronically stored information created on or before June 1, Id. Nevertheless, he scrolled through Rutherford s recent activity. Id. Scott noticed recent activity from Pestex Corp. ( Pestex ), a well-known company that sells pesticides. Id. The subject lines of two s indicated that Rutherford had placed an order with Pest-X on October 4, 2014, and that the order was delivered on October 10, Id. Scott reported this information to the FBI. Id. Boerum State Autopsy Law requires medical examiners to conduct autopsies in many situations, including when a health individual has suddenly died, a death has occurred in a suspicious, unusual or unnatural manner, or apparently resulted from the presence of drugs or poisons in the body. R. at 9. Assistant Examiner Lawrence Fleischer ( Dr. Fleischer ) examined Smith s body, and despite finding no traces of Pest-X (R. at 12), reached a preliminary conclusion that Smith died after ingesting Pestex. R. at 8. No one other than Dr. Fleisher was present during the autopsy and no video or audio recording was made. R. at 14. Dr. Fleisher s report indicates Flores informed the paramedics that Smith had a history of abusing Oxycodone and that when it is orally ingested, it can have the same or similar side effects as a Pestex ingestion. Id. On October 12, 2014, Dr. Fleischer sent an to the Boerum Police Department, Homicide Division, and informed them that he inferred Smith s death could have been a homicide or suicide. R. at 10. On December 5, 2014, Dr. Fleischer was 4

15 terminated from the Medical Examiner s office after his supervisor found a bottle of whiskey in his desk drawer. R. at 13. In a March 5, 2015 letter, the U.S. Attorney indicated that they would not call Dr. Fleisher as a witness nor offer his report into evidence, but instead would call Dr. Elizabeth Chin ( Dr. Chin ) to testify on the report conducted by Dr. Fleischer. R. at Summary of the Proceedings During pre-trial motions, in the United States District Court for the Eastern District of Boerum, the judge ruled in favor of Respondent on all issues. R at 37. Petitioner appealed to the Fourteenth Circuit, and the Fourteenth Circuit also found in favor of the Respondents on all issues and affirmed the judgments, confirming that (1) the good faith exception does not apply to illegal predicate searches, (2) hearsay about a declarant s state of mind may not be admitted to prove the conduct of a third party, and (3) admitting testimony of a different medical examiner that relies upon statements in an autopsy report prepared by an unavailable medical examiner violates a defendant s Sixth Amendment rights. Id. Petitioner filed a notice of appeal. R. at 52. 5

16 SUMMARY OF THE ARGUMENT Issue I: The good faith exception should not apply to the exclusionary rule for illegal predicate searches. The First, Fifth, Sixth, Eighth and the D.C. Circuits have extended the good faith exception to illegal predicate searches. The Ninth, Tenth, and Eleventh Circuits, along with a federal district court and state supreme courts, have declined to extend the good faith exception. The Second Circuit has extended the good faith exception on the condition that police officers disclose to the magistrate how they achieved the facts contained in the warrant application. To date, this Court has only named three entities on which police may rely: magistrates for probable cause, legislatures for permission to search, and clerical workers for information on outstanding warrants. Thus, police officers would not act reasonably if they rely on their own judgment, even if that same judgment would be reasonable if made by a magistrate or state legislature. If this Court extends the good faith exception to illegal predicate searches, this would disincentive police officers to seek a warrant. Even if this Court extends the good faith exception, this Court should still exclude the evidence found on Governor Rutherford s because Officer Scott was not acting reasonably. Issue II: This Court should hold that 803(3) should not be extended to prove a third party s subsequent conduct unless there is corroborating evidence that connected the declarant s statement with the non-declarant s activities because the additional evidence renders the statement trustworthy and reliable. The First and Fourth Circuits have explicitly, and the Third and Tenth Circuits have implicitly, declined to extend 803(3) to prove the conduct of a third party. The Eighth and the Ninth Circuits have extended 803(3) to prove a third party s conduct. 6

17 The Second Circuit has extended 803(3) to prove conduct of a third party only if there is independent, corroborating evidence for that statement. There are many instances in which the trustworthiness of the statement is called into question and allows for prejudicial inferences. Requiring additional evidence guards the hearsay rule against untrustworthiness. Moreover, it balances interests of both parties. The prosecution does not suffer the loss of evidence while protecting the defendant and ensuring against convictions where there is no sufficient evidence. Because there is no independent corroborating evidence proving that Smith had dinner with Rutherford, the statement is inadmissible. Issue III: The Confrontation Clause of the Sixth Amendment should not permit an expert witness, as defined by Federal Rules of Evidence 703, to testify to a jury about the out-of-court observations made by a non-testifying forensic analyst, who neither performed nor observed the forensic procedures underlying the assertions. The Confrontation clause guarantees the accused the right to (1) confront accusatorial witness and (2) an effective and meaningful crossexamination. Autopsy reports are made under circumstances, which a reasonable person would assume could later be used at trial. Thus, autopsy reports are testimonial in nature, granting the accused the right to confront and cross-examine the forensic analyst who prepared the report. Testimonial Autopsy reports are also inadmissible under Federal Rules of Evidence 803. Autopsy reports cannot accurately fall into the business exception for hearsay because they are regularly conducted for the purposes of being produced as evidence for criminal trials. Further, forensic pathology is inherently subjective. Autopsy reports are subject to human error, bias, and mistake. Cross-examination of the analyst who performed the report is to discover possible error on the part of the analyst who actually performed the report. 7

18 ARGUMENT I. THE GOOD FAITH EXCEPTION ESTABLISHED IN UNITED STATES V. LEON SHOULD NOT APPLY TO ILLEGAL PREDICATE SEARCH WARRANTS, BUT EVEN IF THIS COURT FINDS THAT THE GOOD FAITH EXCEPTION DOES APPLY, THE REQUIREMENTS ARE NOT MET IN THIS CASE. The Fourth Amendment protects [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.... U.S. Const. amend. IV. Under the exclusionary rule, evidence obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding against the victim of the illegal search and seizure. Weeks v. United States, 232 U.S. 383 (1914); see Mapp v. Ohio, 367 U.S. 643 (1961). The exclusionary rule operates as a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved. United States v. Calandra, 414 U.S. 338, 348 (1974). Where the purposes of the exclusionary rule cease to be served by suppressing evidence, this Court has recognized various exceptions to its application. United States v. Leon, 468 U.S. 897, 909 (1984); see Andrew Z. Lipson, The Good Faith Exception As Applied to Illegal Predicate Searches: A Free Pass to Institutional Ignorance, 60 Hastings L.J (2009). In Leon, this Court held that the exclusionary rule does not bar the admission of evidence seized under reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause. 468 U.S. at 900. Leon established four different situations where the good faith exception could not be invoked, further narrowing the holding: (1) if the officers recklessly or knowingly included false information in the affidavit, (2) if the magistrate was not neutral and detached, (3) if the warrant was severely facially deficient, or (4) if the warrant was based on an affidavit lacking indicia of probable cause. 8

19 Kenneth C. Malcom, Illegal Predicate Searches and the Good Faith Exception, 2007 U. III. L. Rev. 467, 474 (2007). This Court has yet to directly address the issue of whether the good faith exception to the exclusionary rule applies in situations where a search warrant is issued on the basis of evidence that was obtained from an illegal search. There is a split among the circuit courts of appeals as to whether the good faith exception applies to the exclusionary rule when the illegal search results because of police error. Compare United States. v. Massi, 761 F.3d 512, (5th Cir. 2014); United States v. McClain, 444 F.3d 556, (6th Cir. 2005); United States v. Diehl, 276 F.3d 32, 43 (1st Cir. 2002); United States v. White, 890 F.2d 1413, 1419 (8th Cir. 1989); United States v. Thomas, 757 F.2d 1359, 1368 (2d Cir. 1985); United States v. Thornton, 746 F.2d 39, (D.C. Cir. 1984) with United States v. McGough, 412 F.3d 1232, (11th Cir. 2005); United States v. Scales, 903 F.2d 765, 768 (10th Cir. 1990); United States v. Vasey, 834 F.2d 782, (9th Cir. 1987). There is no dispute that the warrantless search of the Respondent s office computers on October 16, 2014, was presumptively unreasonable under the Fourth Amendment. R. at 22. Thus, because the search was presumptively unreasonable and the second warrant was based upon evidence seized from that search, this Court should hold that the good faith exception does not apply to the exclusionary rule of that search, affirm the decision of the district court, and exclude the evidence from the illegal search. A. This Court should not extend the good faith exception to illegal predicate searches because it stands in direct conflict with the premises established in Leon and doing so would encourage police officers to use illegal search tactics and seek refuge behind the good faith exception. A majority of circuit courts have held that when a police officer conducts a search without articulable suspicion or probable cause, the evidence obtained from that search is still 9

20 admissible if the officer s own error was objectively reasonable. See Massi, 761 F.3d at ; McClain, 444 F.3d at 564; Diehl, 276 F.3d at 43; White, 890 F.2d at 1419; Thomas, 757 F.2d at 1368; Thornton, 746 F.2d at The minority of circuit courts on the other hand, have held that when a police officer is responsible for violating the Fourth Amendment by conducting a search without the requisite suspicion or probable cause, the good faith exception is not a valid exception to the exclusionary rule. See McGough, 412 F.3d at ; Vasey, 834 F.2d at 789; Scales, 903 F.2d at 768. This Court should find that the good faith exception should not apply to the exclusionary rule, which was specifically designed to deter police conduct, when police officers are responsible for violating an individual s Fourth Amendment rights. i. While this Court has not ruled on whether the good faith exception applies, a number of circuit courts have correctly found that the good faith exception should not apply to illegal predicate searches. Circuit court decisions regarding Leon s good faith application to illegal predicate searches fall into three different categories: (1) courts that extend Leon s ruling and apply the good faith exception, (2) courts that refuse to apply the good faith exception, and (3) courts that extend Leon s ruling and apply the good faith exception only if officers informed the magistrate how they obtained the facts contained in the warrant application. The First, Fifth, Sixth, Eighth, and the D.C. Circuit, have extended the good faith exception to illegal predicate searches. See Massi, 761 F.3d at ; McClain, 444 F.3d at 564; Diehl, 276 F.3d at 43; White, 890 F.2d at 1419; Thornton, 746 F.2d at The Ninth, Tenth, and Eleventh Circuits, along with a federal district court and four state supreme courts, have declined to extend the good faith exception. McGough, 412 F.3d at ; Vasey, 834 F.2d at 789; Scales, 903 F.2d at 768; see United States v. Villard, 678 F. Supp. 483, (D.N.J. 1988); see also State v. DeWitt, 184 Ariz. 464, 470 (1996) (en banc), State v. 10

21 Reno, 260 Kan. 117, 129 (1996), People v. Machupa, 7 Cal. 4th 614, 631 (1994) (en banc), State v. Carter, 69 Ohio St. 3d 57, 68 (1994) (per curiam), State v. Hicks, 146 Ariz. 533, 535 (Ct. App. 1985), aff d on other grounds sub nom. Arizona v. Hicks, 480 U.S. 321 (1987). The Second Circuit is the only court that has extended the good faith exception on the condition that police officers disclose to the magistrate how they achieved the facts contained in the warrant application. Thomas, 757 F.2d at ii. The good faith exception should not be extended because it directly conflicts with the premises established in Leon. In Leon, this Court established five premises regarding the exclusionary rule and the good faith exception: (1) the exclusionary rule is meant to deter police, not magistrates, (2) there was no evidence magistrates ignored or subverted the Fourth Amendment, (3) there was no reason to believe exclusion would deter magistrates, (4) excluding evidence cannot deter reasonable police conduct, and (5) officers are entitled (i.e., reasonable) to rely on the magistrate's determination of probable cause. 468 U.S. at ; Malcom, supra, at 486. Each one of these premises is individually necessary. See Vasey, 834 F.2d at 789. This Court in Leon recognized that the exclusionary rule exists to deter police officers, not magistrates. 468 U.S. at 916; Vasey, 834 F.2d at 789; Machupa, 872 P.2d at In Leon, the only error in the search warrant process was the magistrate s erroneous finding that the evidence presented established probable cause. Vasey, 834 F.2d at 789 (holding that the officer in Leon acted in good faith both in gathering and presenting evidence to a neutral magistrate and the only error was the magistrate s finding of probable cause). Thus, this Court held that as to the magistrate s error, the good faith exception applied. Id. Leon is inherently different than cases involving illegal predicate searches. In Leon, a magistrate made the constitutional error, whereas in illegal predicate searches, an officer has made the unconstitutional error. See Vasey, 11

22 834 F.2d at 789 (finding that because a police officer conducted a warrantless search of a vehicle, thus violating Vasey s Fourth Amendment rights, any reliance on the good faith exception is precluded); see also McGough, 412 F.3d at 1240 (holding that the good faith exception did not apply because the search warrant was tainted with evidence obtained from an illegal search). Additionally, this Court in Leon emphasized that police officers are to reasonably rely on a magistrate s determination of probable cause. 468 U.S. at 926. Aside from magistrates, to date, this Court has only named two additional entities on which police may rely: legislatures for permission to search, Illinois v. Krull, 480 U.S. 340, (1987), and clerical workers for information on outstanding warrants. Arizona v. Evans, 514 U.S. 1, (1995). Since this Court has only recognized three instances in which a police officer can rely on an entity, police officers would not act reasonably if they rely on their own judgment of constitutionality, even if that same judgment would be reasonable if made by a magistrate or state legislature. Malcom, supra, at ; see also Machupa, 872 P.2d at 122 (holding that the good faith exception can only apply to Fourth Amendment violations if committed in reliance on other entities, not by a police officer s reliance on his own reasoning). iii. Finding that the good faith exception does not apply to illegal predicate searches would have the beneficial effect of requiring police officers to determine whether a search is illegal prior to conducting the search. The deterrent purpose of the exclusionary rule assumes that police have engaged in willful or negligent conduct, which has violated a defendant s Fourth Amendment right. Ross M. Oklewicz, Expanding the Scope of the Good-Faith Exception to the Exclusionary Rule to Include A Law Enforcement Officer s Reasonable Reliance on Well-Settled Case Law That Is Subsequently Overruled, 59 Am. U. L. Rev. 1715, 1741 (2010). By refusing to admit such 12

23 evidence, the court hopes to instill a greater degree of care towards the rights of the accused. Id. Petitioner is likely to argue that where the official action was pursued in complete good faith, the deterrence rationale loses much of its force. Petitioner fails to recognize that if the good faith exception is adopted, police officers would continue to use the same illegal search tactics, such as reading the to and from lines in s, all under the refuge of the good faith exception. Malcom, supra, at 483; see United States v. Fletcher, 91 F.3d 48, 52 (8th Cir. 1996). Under current law in this jurisdiction, police are incentivized to seek warrants because doing so provides the good faith safe harbor. Malcom, supra, at 484. However, if this court extends the good faith exception to predicate searches, the same reasoning compels them to extend good faith treatment to all warrantless searches. Id. This would disincentive police officers to seek a warrant and a warrant requirement would essentially become a meaningless form of words. Id. Additionally, [e]xcluding the evidence obtained as a result of this unauthorized administrative search will have the beneficial effect of requiring police officers to determine in advance whether a vehicle is in fact a rated commercial vehicle before executing an administrative stop. United States v. Herrera, 444 F.3d 1238, 1255 (10th Cir. 2006). Petitioner is likely to argue that even if this court does not adopt a good faith exception to the exclusionary rule, the court should adopt the good faith exception with a disclosure system. Adopting the good faith exception with the disclosure system would mirror the Second Circuit Court s decision in Thomas, 757 F.2d at 1368, but doing so would cause a daunting redefinition of the magistrate s role. Malcom, supra, at 490. A magistrate s ordinary function is to determine whether the facts alleged in an affidavit establish probable cause and is supported by oath. Id. at It is not within the magistrate s purview to determine whether the facts alleged in the affidavit to establish probable cause were lawfully obtained. Id. 13

24 Even if it was in the magistrate s purview, determining if Fourth Amendment rights were violated is a fact-intensive inquiry and [i]t may be seriously doubted whether an ex parte, nonadversarial hearing is an appropriate forum for the kind of fact development necessary for accurate and reliable protection of the Fourth Amendment's guarantees. Id. at 491. Further, magistrates are consistently under pressure to expedite their dockets and their review seems quite hurried in practice, especially as compared with the process of review which occurs after a suppression motion has been filed. Id. In metropolitan cities, thousands of warrant applications are received every year for review; 65% of review proceedings lasted 150 seconds or less, and 89% lasted less than five minutes. Id. Thus, this Court should not extend the Leon good faith exception to illegal predicate searches. B. Even if this Court holds that the good faith exception applies to the exclusionary rule, the requirements are not met in this case. Even if this court finds that the good faith exception does apply to the exclusionary rule, this court should still affirm the decision of the district court and exclude the evidence found on Governor Rutherford s because Officer Scott was not acting reasonably. In order for the good faith exception to apply and the evidence to be admissible, two separate requirements must be met: (1) the prior law enforcement conduct that uncovered evidence used in the affidavit for the warrant must be close enough to the line of validity that an objectively reasonable officer preparing the affidavit or executing the warrant would believe that the information supporting the warrant was not tainted by unconstitutional conduct, and (2) the resulting search warrant must have been sought and executed by a law enforcement officer in good faith as prescribed by Leon. Massi, 761 F.3d at 528. Respondent concedes that the law enforcement personnel, namely the FBI, who executed this second warrant were unaffiliated with the first investigation conducted by Officer Scott and his fellow state officers. R. at 21. Additionally, the FBI agents conducting 14

25 the search were acting in good faith reliance on the warrant issued by Judge Olivia Maddalena. Id. Thus, the second requirement of the good faith exception is met. Id. The first requirement, which mandates that police officers have an objective reason to believe their actions were legal, has not been met. Petitioner s argument that it was reasonable for Officer Scott to search the to and from information (incoming and outgoing addresses) in Rutherford s account is unavailing and misplaced. The warrant was limited to all digital computer files contained within the office and personal computers and laptops of Governor Paul Rutherford. R. at 2. Officer Scott contends that he understood incoming and outgoing addresses to be searchable without a warrant and to that extent, he was acting in good faith. R. at 22. While it may be possible to obtain an order for a pen register or a trap and trace devices 1 to discern incoming and outgoing addresses without showing probable cause, no order was obtained by Officer Scott prior to searching Rutherford s address. Id. Even if this court were to find it reasonable for an Officer to search incoming and outgoing addresses, despite needing a court order, a court order does not allow for the content of the communications to be recorded or viewed. See 18 U.S.C. 3127(3), (4) (1986); see also In re United States, 416 F. Supp. 2d 13, (D.D.C. 2006). Specifically, In re United States, pointed out that the use of pen registers or trap and trace devices must exclude all information relating to the subject line and body of the communication. Id. at 17-18; see R. at 7. Here, not only did Officer Scott violate the law by fail to obtain an order for a pen register or trap and trace device, he also violated the law by reading the subject line of two s. R. at 7. 1 A pen register was originally defined as a device for recording the telephone numbers dialed out from a particular phone and a trap and trace device was originally defined as a device for recording the numbers dialing in. 18 U.S.C With the development of new telecommunications technologies, the definitions of these devices have been greatly expanded to include tracing cellular phones and Internet or use. See Allowable Use of Federal Pen Register and Trap and Trace Device to Trace Cell Phones and Internet Use, 15 A.L.R. Fed.2d

26 Accordingly, not only is Officer Scott s failure to obtain a court order to search the incoming and outgoing addresses unreasonable, but even if he had a court order, trace devices must exclude all information relating to the subject line and body of the communication. In re United States, 416 F. Supp. 2d at Thus, because Officer Scott acted unreasonably in multiple capacities and did not have an objective reason to believe his actions were legal, the good faith exception would not apply and the decision of the lower court should be affirmed. II. FEDERAL RULES OF EVIDENCE 803(3) PERMITS THE ADMISSION OF A STATEMENT OF A DECLARANT S THEN-EXISTING STATE OF MIND TO PROVE CONDUCT OF A THIRD PARTY ONLY IF INDEPENDENT CORROBORATING EVIDENCE IS OFFERED AS A FOUNDATION AND BECAUSE SUCH EVIDENCE IS NOT PRESENT HERE, THE STATEMENT SHOULD BE EXCLUDED. Hearsay is an out of court statement offered for the truth of the matter asserted. Fed. R. Evid. 801 (1975). The rule against hearsay precludes out of court statements offered for the truth of the matter asserted, written or testimonial, from being considered by the trier of fact. J. Broocks Greer, III, Comment, Hearsay, The Confrontation Guarantee and Related Problems, 30 La. L. Rev. 651, (1970). Hearsay goes directly to the Sixth Amendment s requirement that an accused have the right to confront the witnesses against him. U.S. Const. amend. VI. While hearsay is typically excluded from trials and hearings, there are many exceptions to the hearsay rule. There are two requirements that must be considered when offering hearsay under an exception: (1) whether the hearsay is necessary and (2) whether the circumstances around the statement render it trustworthy. Joseph A. Devall, Jr., Whether Federal Rule of Evidence 803(3) Should Be Amended to Exclude Statements Offered to Prove the Subsequent Conduct of a Nondeclarant: Guidance from Louisiana, 78 Tul. L. Rev. 911, 915 (2004). One of the exceptions is the state of mind exception under Federal Rules of Evidence 803(3), which allows: 16

27 The declarant s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), 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. Fed. R. Evid. 803(3) (1975). The contemporaneity and spontaneity of the statement, along with the state of mind of the declarant, renders it trustworthy. Devall, supra, at 916. This Court has yet to directly address the issue of whether the state of mind exception can be offered to prove a third party s subsequent conduct. There are conflicting holdings amongst federal circuit courts that have squarely addressed this issue. Compare United States v. Pheaster, 544 F.2d 353 (9th Cir. 1976); United States v. Calvert, 523 F.2d 895 (8th Cir.), cert. denied, 424 U.S. 911 (1975); United States v. Sperling, 726 F.2d 69 (2d Cir. 1984) with Gual Morales v. Hernandez Vega, 579 F.2d 677 (1st Cir. 1978); United States v. Jenkins, 579 F.2d 840 (4th Cir. 1978); United States v. Joe, 8 F.3d 1488 (10th Cir. 1993); Baughman v. Cooper- Jarrett, Inc., 530 F.2d 529 (3d Cir. 1976), overruled on other grounds, Croker v. Boeing Co. (Vertol Division), 662 F.2d 975 (3d Cir. 1981). This Court should hold that the state of mind exception should not be extended to prove a third party s subsequent conduct unless there is corroborating evidence which connected the declarant s statement with the non-declarant s activities because the additional evidence renders the statement trustworthy and reliable. United States v. Best, 219 F.3d 192, 198 (2d Cir. 2000). A. This Court should adopt the Second Circuit s holding and find that 803(3) permits the admission of a statement of a declarant s then-existing state of mind to prove conduct of a third party only if independent corroborating evidence is offered as foundation for the statement because it renders the statement reliable and balances the interests of the government and the defendant. Embedded within the state of mind exception is the Hillmon doctrine, which allows declarations of motive, design, plan, or intent to prove the declarant s future conduct. Mut. Life 17

28 Ins. Co. v. Hillmon, 145 U.S. 285, 295 (1892); see Fed. R. Evid. 803(3). Rule 803(3) s common law antecedent is Mutual Life Insurance Co. v. Hillmon. Id. In Hillmon, the wife of the decedent filed the action to force Mutual Life Insurance to pay on its policy after her husband, the decedent, disappeared. Hillmon, 145 U.S. at 285. At issue in Hillmon, was the identity of a corpse. Id. at 286. This Court allowed Mutual Life Insurance to enter into evidence letters by a third party, Frederick Walters. Id. at 287. The letters indicated that Walters intended to go to a nearby creek with Hillmon and were intended to prove that the unidentified corpse could be Walters, not Hillmon. Id. This Court held that whenever the intention is of itself a distinct and material fact in a chain of circumstances, it may be proved by contemporaneous oral or written declarations of the party. Id. at 295. The Hillmon doctrine became the model for Rule 803(3), but also created confusion. Determining the scope of the Hillmon doctrine and whether Hillmon s wife could use the letters written by Walters to show that the body was more likely that of Hillmon became a dilemma. Pheaster, 544 F.2d at (deciding whether the Hillmon doctrine allowed the victim s statement that he was going to meet the defendant to prove that they did in fact meet). i. While this Court has not ruled on whether 803(3) permits the admission of a statement of a declarant s then-existing state of mind to prove conduct of a third party, there is a split among the circuit courts of appeal. Circuit court decisions regarding whether the state of mind exception can be offered to prove a third party s subsequent conduct fall into three different categories: (1) courts that extend 803(3) to prove the conduct of a third party, (2) courts that refuse to extend 803(3), and (3) courts that extend 803(3) to prove conduct of a third party only if there is independent, corroborating evidence to lay the proper foundation for that statement. The Eighth and the Ninth 18

29 Circuits have adopted the first approach and extended the state of mind exception to prove a third party s subsequent conduct. See Pheaster, 544 F.2d at 353; Calvert, 523 F.2d at 895. The First and Fourth Circuits have explicitly declined to extend 803(3) to prove the conduct of a third party. See Gual Morales, 579 F.2d at 677; Jenkins, 579 F.2d at 843. The Fourth Circuit held that while hearsay could be admitted to prove only the conduct of the declarant, the jury was permitted to draw any inference from the hearsay, even those involving a non-declarant. Jenkins, 579 F.2d at Additionally, the Third and Tenth Circuits have implicitly declined to extend 803(3) as well. See Joe, 8 F.3d at 1493 n.4 ( An out-of-court statement relating a third party s state of mind falls outside the scope of the hearsay exception because such a statement necessarily is one of memory or belief ); Baughman 530 F.2d at 533 ( The preferred course would have been to give a limiting instruction that [the declarant s] statement was not admissible to show the participation of [others] in the conspiracy ). The Second Circuit is the only court that has extended 803(3) to prove conduct of a third party only if there is independent, corroborating evidence to lay the proper foundation for that statement. See Sperling, 726 F.2d at 74. ii. The plain text of the 803(3) is ambiguous and the legislative history offers no guidance or assistance. Courts will begin their statutory analysis by looking to the plain text and the plain meaning of a statute. Bourjaily v. United States 483 U.S. 171, 181 (1987). The plain text of 803(3) is ambiguous and cannot be relied on. Fed. R. Evid. 803(3); see also Devall, supra, 920. Rule 803(3) allows statements of the declarant s then-existing state of mind as an exception to the hearsay rule. Fed. R. Evid. 803(3). But it does not specify the purpose for which a statement may or may not be used or whether the statement is limited to prove the declarant s conduct. Id. When the courts find a statute ambiguous as to scope or intent, they will often refer to the 19

30 legislative history accompanying the passage of that statute. See Huddleston v. United States, 485 U.S. 681, 688 (1988) (finding that the court first looked to the plain meaning of the statute and then looked to the legislative history). The legislative history accompanying 803(3) has not been helpful to courts in interpreting the congressional intent behind Rule 803(3). Petitioner is likely to argue that the House Committee intended that 803(3) be read to limit the Hillmon doctrine, rendering statements by a declarant admissible only to prove his or her future conduct and not the future conduct of another person. See H.R. Rep. No. 650, 93d Cong., 2d Sess. 13 (1974), reprinted in 1974 U.S.C.C.A.N. 7075, The Advisory Committee Note to Rule 803(3), however, states that the rule of Mutual Life Ins. Co. v. Hillmon... allowing evidence of intention as tending to prove the doing of the act intended, is, of course, left undisturbed. Fed. R. Evid. 803(3); R. at 45. Moreover, the Senate and conference reports, are silent on Rule 803(3). Id. Thus, this court should look to the purpose behind the hearsay rule and the public policy supporting the Second Circuit s approach. iii. The Second Circuit s approach supports the purpose behind the hearsay rule and allows trustworthy and reliable statements to come into evidence. Hearsay precludes out of court statements offered for the truth of the matter asserted from being considered by the trier of fact. Greer, supra, Hearsay statements are excluded because they are not made under oath and their veracity cannot be tested by cross-examination. Id.; see also Devall, supra, at 912. Petitioner s contention that admitting a declarant s statement under 803(3) as evidence of a non-declarant s subsequent conduct meets the indicia of reliability because it falls within a firmly rooted hearsay exception is unavailing. Terrovona v. Kincheloe, 852 F.2d 424, 427 (9th Cir. 1988); see R. at 49. The principle of trustworthiness is not always clearly present. Devall, supra, at 937. It 20