Louisville Law Examiner
 Serving The University of Louisville School of Law Community 
Volume 8, Number 5 Louisville, Kentucky, March, 1983 Circulation 4500
Students elect new SBA Officers
By Crystal Collins 
"I think that I am the first female to 
hold the position of president," said 
Anne Howard Sharp. And indeed she is.
The 24-year-old student narrowly
defeated Claudia Silbar in the Student
Bar Association election held on
February 23.
 Also elected as officers were Steve 
Moores, day vice-president; Steve Edwards,
night vice-president; Denise 
Moore, secretary; Charles Alfano,
treasurer; and Teresa Champion, 
ABA/LSD representative. 
"This was my second year on the SBA
 as an elected representative," said Ms.
Sharp, who has served on the social
committee, the election committee, and
the faculty curriculum committee of the
SBA.
''The faculty curriculum committee
has really opened my eyes to a lot of
things. I think that serving on that com­mittee
probably gave me more of an idea
of how you are going to have to deal
with the faculty and the students in the
position of president. It was said that
you don't have to be in good with the
faculty to be an effective president, I
don't think that is true. I think that you
have to be able to relate to the faculty to
be effective ... I guess being a politician
is a part of that. I never considered
Pictured above are the new SBA Officers. Standing, to right, are Denise
Moore, Charles Alfano, Ther.esa Champion; Bottom row, Steve Moores, Anne
Sharpe and Steve Edwards.
myself a politician. I just want to be a
president that can relate and work with
everybody. I want to try to work within
the system instead of fighting from
without. You can get more accomplish­ed
that way. I think that the atmosphere
is susceptible to change, not drastic
change but positive change.
Photo By Mark Ashburn
"One change I want to make is that I
want this SBA office to be open as much
as possible. It is very aggravating to have
an office that is supposed to be for the
students and it is never open. We are go­ing
to have people in there. I want the
door to be open."
Also, Ms. Sharp is interested in the
conditions of the student lounge.
understand that we were supposed to
have new furniture and a big screen TV.
I would go for a small one right now."
She is also concerned about increasing
alumni backing of the school. "If you
get good alumni support, you are going
to have a good institution," she said.
Additionally, "I want to make this
school attractive to the people who are
looking at law school and to the profes­sional
community." She added,
however, "I see my main function as
representing the students ... I want to
promote the interests and concerns of
the student body, so that we can be
proud we graduated from U of L. It is
easy to articulate goals, but it is a dif­fere!_
lt thing to implement them.,.
Ms. Sharp, who has an undergraduate
degree in English Literature from Centre
College, is also a manuscript editor for
the Journal of Family Law, and a
member of the Brandeis Society. Addi­tionally,
she works as a part-time law
clerk for Greenebaum, Treitz and Mag­giolo.
"I see no problem with handling
everything effectively ... I have managed
to do well thus far." That, she has. The ·
Owensboro native is ranked 4th in the
second year class.
Frank McCool: Convicted and Acquitted
On July 4th, not long ago, a young
construction worker stopped by a local
bar for a few beers on his way home
from work. He was going there to relax.
Little did he know that sometime around
12:30 a.m. he was going to experience
the ultimate in relaxation - The Big
Sleep.
It was a typical, slow, Sunday night at
the Twilight Lounge. The lounge was
dimly lit and tunes cranked from a
nearby jukebox. The young man, a
stranger to the lounge, got to talking to
the Twilight's hostess (with the mostest)
Tootsie, who seemed genuinely happy to
get the goodlooking stranger a beer.
Everybody seemed happy that night at
the Twilight. Everyone save Frank
McCool. Frank, a Twilight regular and a
gun-toting security guard at a nearby
apartment complex, had been drinking
heavily. There was something about the
young stranger that irritated Frank.
Perhaps it was the way the stranger was
talking to "his" Tootsie. Nobody had
ever invaded Frank's territory before.
Frank went over to where the young
stranger was sitting to put an end to his
conversation with Tootsie. Cross words
were exchanged and some pushing and
shoving occurred.
Frank was hot. Not only was this
stranger creating what Frank believed
was a civil disturbance, but _.he was
threatening Frank's macho image. He
had to save face. Frank walked clear
across the bar to get a loaded gun that he
kept in his coat pocket. Gun in hand, he
walked back over to the stranger to
persuade him to leave.
No one will ever really know what
happened from there on. Although the
facts get hazy, one thing is clear: Frank's
gun went off and the young stranger fell
to the ground, mortally wounded in the
neck.
Frank McCool was indicted for
murder in the first degree by a grand
jury in Madison County, West
Columbia. The case of West Columbia
vs. McCool came to trial on January 22,
1983.
Whether Frank was actually found
guilty or acquitted is not important since
to the participants in this year's Mock
Trail Competition, it was how they
played the game that counted.
The facts above represent this year's
National Mock Trial problem. The
University of Louisville School of Law
participates in the National Competition
and on January 22 and February 5, the
School of Law held its own competition
to determine · who would go on to the
regional portion of the competition in
Lansing, Michigan.
In the preliminary rounds held on
January 22, eight teams, each made up
of two students, marched into the
courtrooms on the third floor of the
Hall of Justice to do battle. When the
smoke cleared, there were only four
teams left, Barry Willet and Don
Battcher, Bill Savarino and Tom Stone,
Marc Murphy and Don Miller, and
Chris Polk and Pete Glubiak. The final
rounds were set for February 5.
Each side was required to call two
witnesses. According to the rules of the
competition, the teams had to divide the
duty of representing their side, whether
it was the prosecution or defense. For
example, one member had to make the
opening statement, the direct
examination of one witness for his side,
and the cross examination of one of the
opposition's witnesses. His partner was
responsible for the closing statement,
the direct examination of his side's other
witness and the cross examination of the
opposition's other witness.
Since it was pretty well established
that the gun was in the defendant's hand
at the time that it went off, the big issue
of the trial boiled down to the
defendant's state of mind at the time of
the shooting. Each witness had a story to
tell, as all witnesses do, and it was up to
each side to coordinate witnesses, law
and fact into a coherent argument.
The prosecution was armed with
Tootsie the hostess who worked at the
lounge and who knew the defendant.
They also offered the pathologist who
performed the autopsy on the body of
the victim. The defense offered the
defendant and a man who was a friend
of the defendant who was also a
customer in the lounge when the
shooting occurred. The witnesses were
played by fellow students and in some
cases attorneys. Each witness was given
a statement which helped them answer
some of the questions posed by the
competitors.
The "magicians" who conjured up
courtrooms, judges, witnesses and other
necessaries for the competition were the
members of the Moot Court board led
by Jessica Swim. Long hours were spent
contacting the real judges and practicing
attorneys that made the competition
more realistic and all the more
worthwhile.
On February 5th the final rounds were
held to determine the two teams that
would go on to compete in the regionals.
In Judge Eckert's courtroom the team
of Battcher and Willett triumphed over
Miller and Murphy, while in Judge Peers
courtroom Glubiak and Polk were
successful against Savarino and Stone.
On February 24th, Professor Eades
accompanied the two remaining teams
to Lansing.
(continued on page 2)
2 Louisville Law Examiner, March 1983
Louisville Law Examiner
EDITORIAL BOARD
Bill Savarino Ruth Ann Cox
Editor-in-Chief Managing Editor
Mark Ashburn
Photographic Editor
Tim Cocanougher
Crystal Collins
Scott Cox
Judge MARLIN M. VOLZ, Advisor
Steve Durham
Mike Kirk
Associate Editors
Rich Milster
Brandeis Brief Editor
STAFF
Jon Hardy
Charles Herd
Judy Hoge
Todd Hollenbach
John Schaaf
Catherine Spalding
Neil Ward
Professor LAWRENCE W. KNOWLES, Consultant
--------------·---·-·-- -
The Louisville Law Examiner is published seven times during the academic
year in the interest of the University of Louisville School of Law community.
Articles are invited from faculty members, students, and members of the bar
who wish to do freelance work. Any rroposed article should be cleared with
the Editor as to topic and length.
Address all communications to The Louisville Law Examiner, School of
Law, University of Louisville, Louisville, Kentucky 40208.
Phone: 502-588-6398.
... It's how they
played the game
(continued from page 1)
Eades serves as faculty advisor and
views his position as one of providing
continuity in the program from year to
year.
Although the two teams lost in the
first round in Lansing, Eades did not see
this as a terrible loss. In each round
individual members of Louisville's
teams were named as outstanding
advocates for that round despite their
team's loss.
According to the competitors, the
competition in Lansing was well
organized. The city virtually shut down
its courthouse for the day and highly
qualified persons were found to play the
various witness roles.
Eades brought out the fact that
Louisville's local competition is extra­curricular
and that no credit is given for
participating. Students are handed the
problem and are on their own while
Eades acts only as a sounding board.
Eades looks on this aspect of the com­petition
favorably.
The problem is that other schools do
not run this program as an
extracurricular activity. Eades spoke
with other professors at the Lansing
competition who informed him that at
their schools the National Mock Trial
problem for that year is taken up by a
trial practice class who pour over it from
every angle. In the end the best students
in the class are chosen to go to the
regional competition. Eades sees
Louisville's program as a better learning
experience and noted that unless the
school decides that winning is so
important so as to necessitate the
formation of a National Mock Trial
class, Louisville's program will remain
extracurricular.
The competitors agreed that the
program was a real positive experience
and found it extremely worthwhile. The
judges comments were valued by the
competitors, although some found that
they got different comments from
different judges for what the students
saw as similar style and performance.
The Mock Trial Program, organized
by the Moot Court Board and Professor
Eades is an excellent chance for students
to practice trial techniques in a true
courtroom setting, where like in real life,
there are winners and losers.
- Stu-dents attend -Enviro-nntental -C-o-nference
By John Schaaf
Two students from the University of
Louisville School of Law recently
returned from San Francisco where they
attended a three-day conference on
environmental law.
With the help of Professor Richard
Nowka, Steve Moores and Carl
Horneman were nominated by U of L
and journeyed to California for the
American Bar Association program
which was co-sponsored by the
Environmental Law Institute and the
Smithsonian Institution.
As part of the ABA's Continuing
Professional Education program, the
conference included discussions on such
topics as hazardous wastes, the Clean
Air Act, water pollution, wilderness
areas, and energy development on public ·
lands.
Moores said the conference gave him
new insight into the practical aspects of
environmental law.
"It's one thing to sit back and talk in
glowing generalities about cleaning up
the environment," Moores said. "But
this conference gave ine a chance to
develop a real appreciation for the nuts
and bolts of litigating environmental
issues.''
According to Moores, one of the
interesting aspects of the conference was
the frequent discussion of the new and
innovative theories of recovery being
utilized by plaintiffs in environmental
actions.
"Environmental law is an area in
which the law is growing and changing,"
Moores said. "And the courts are open
to new theories of recovery in
environmental suits."
One of the themes· of the conference
was the merger of. environmental law
and traditional concepts of tort law, a
union which conference organizers
called "one of the most important
developments in the. field of hazardous
and toxic wastes."
A paper presented at the conference
by Virginia Nolan, a professor at the
University of San Diego School of Law,
points out that Congress ''has
responded to the hazardous waste
disposal crisis" by enacting major pieces
of legislation, one of which provides for
setting standards applicable to owners
and operators of waste treatment,
storage, and disposal facilities and
another (the Superfund legislation)
which provides for the restoration of the
environment following a hazardous
waste incident.
However, no legislation has been
enacted to provide compensation to
private individuals who have been
affected by releases of hazardous
wastes. Nolan said people injured in this
fashion "are left to pursue their claims
for relief largely by looking to common
law."
Nolan's paper describes how
contemporary tort theories such as
negligence, nuisance, and strict liability
are being used on behalf of plaintiffs
who suffer injuries caused by the
improper disposal of hazardous wastes.
A lawyer attempting to use tort law
effectively in the area of hazardous
wastes has a "challenging task,"
according to Nolan. The problem of
injury from hazardous wastes is new to
the torts system, she says, and therefore
is difficult to litigate.
Moores said the current trend in
environmental litigation is moving away
from the class actions which were
prevalent a decade ago and toward an
increasing emphasis on seeking damages
for injuries to individuals.
Though there have been some changes
in the battle plans of environmentalists,
Moores said the San Francisco
conference indicates the war on behalf
of the environment is still being waged.
"I was happy to learn that the
environmental movement is still alive,"
Moores said. "It may have become sort
of institutionalized, but it's still out
there."
ATLA Seminar held
By Ruth Ann Cox
''Winning through Discovery,
Preparation and Trial Strategy", the
Sixth Circuit Seminar of the Association
of Trial Lawyers of America (ATLA)
was held March 3-5 at the Hyatt
Regency in Lexington, Kentucky.
The program opened at noon on
Thursday, March 3 with presentations
by noted trial attorneys on investigation,
discovery and the taking of depositions.
Amid the plush surroundings of the
Regency Ballroom, ATLA members,
attorneys and students alike, found it
difficult to take notes quickly enough to
keep pace with the wealth of shared
knowledge and experiences.
On Friday morning, March 4 the first
topics were voir dire and jury
instructions. Tips were given on how to
handle various courtroom problems,
such as the interfering judge and
objecting opposing counsel. Attorneys
Bill Johnson of Frankfort and
Louisville's Frank Haddad stressed the
importance of the opening statement
and shared their own techniques.
After a luncheon and break, the
seminar reconvened for lectures on trial
theme and theme integration into direct
and cross-exam. Friday's last· speakers
were Larry Smith of New Orleans and
Peter Perlman of Lexington whose topic
was "Summation: You've Got One Shot
Left". Larry Smith fulfilled his promise
to bring the audience to tears with his
example of a summation in a child death
case . Afterwards, the seminar
participants and faculty were cordially
invited to an informal reception at the
nearby law offices of Peter Perlman and
William Garmer.
Suggestions on the use of nonverbal
communication in a trial and tips on
stopping your opponent's momentum
opened the final day on Saturday,
March 5. The seminar concluded shortly
after noon with a lecture by Theodore
Koskoff of Bridgeport, Connecticut, a
noted personal injury and products
liability attorney, on "Crises in the
Courtroom.''
Several University of Louisville Law
Students were privileged to attend the
seminar free of charge as student
members of ATLA. These memberships
can be obtained by joining the Student
Trial Lawyers As:;ociation.
Louisville Law Examiner, March 1983
Brandeis Brief:
The Exclusionary Rule
Going ... But Not Gone
This is the second of a two-part series on the exclusionary rule.
Given the constraints of time and space, these articles are not
intended to be an exhaustive treatment of the subject. Rather,. they
are intended to provide an overview of the fourth amendment and
its future in light of recent decisions of the Supreme Court of the
United States. The authors gratefully acknowledge the assistance of
NLADA in providing valuable resource materials.
By Daniel T. Goyette
and Frank W. Heft, Jr.
Daniel T. Goyette is a graduate of Marquette University and the University of
Oklahoma School of Law. He was recently appointed Jefferson County Public
Defender, having previously served as Chief Trial Attorney and Associate
Director of the Office of the Public Defender. He is a former Assistant
Commonwealth's Attorney and currently serves as Chairman of the Criminal
Law Section of the Kentucky Bar Association. Mr. Goyette is also a Lecturer at
the School of Law.
Frank W. Heft, Jr., is a graduate of Boston University and the University of
Louisville School of Law. He is Chief Appellate Defender of the Jefferson
County Public Defender, having previously served as a trial attorney on the staff
of the Public Defender. He has argued before Kentucky and Federal appellate
courts including the Supreme Court of the United States. Mr. Heft is also a
Lecturer in the defense section of the Applied Criminal Justice Seminar at the
School of Law.
In previewing the second part of this
series on the exclusionary rule, we
concluded the last issue of the Brandeis
Brief with the somewhat foreboding
statement that "whether the result
reached in United States v. Ross
indicates a trend toward promoting law
enforcement interests over adherence to
traditional Fourth Amendment doctrine
will be examined in the context of the so­called
'good faith' exception to the
exclusionary rule in the second part of
this analysis". In the week following
publication of that statement, the
Supreme Court of the United States, in
an unusual and controversial decision,
called for reargument in Illinois v. Gates
(No. 81-430) and requested the parties to
address the question of "whether the
rule requiring the exclusion at a criminal
trial of evidence obtained in violation of
the Fourth Amendment, Mapp v. Ohio;
Weeks v. United States (citations
omitted), should to any extent be
modified, so as, for example, not to
require the exclusion of evidence
obtained in the reasonable belief that the
search and seizure at issue was consistent
with the Fourth Amendment." 103
S.Ct. 436 (1982).
The Court's action was unusual under
the circumstances in Gates because the
Court had already heard oral arguments
in the case and had earlier refused the
State of Illinuis permission to argue the
question of good faith, an issue which
had not been presented below. Id. at 436
(Stevens, J., dissenting). For the Court
to have carved an exception to
traditional appellate practice in order to
consider the "good faith" issue is
difficult to comprehend in light of the
Court's recent and summary rejection of
a "good faith" exception in Taylor v.
Alabama, __ U.S. __ , 102 S.Ct.
2664, 73 L.Ed. 2d 314 (1983), stating
that "to date, we have not recognized
such an exception, and we decline to do
so here" . __ U.S. __ , 102 S.Ct. at
2669. That opinion reflected the
longstanding position of the Court that
" ... good faith on the part of the
arresting officers is not enough" to
justify a fourth amendment violation.
Henry v. United States, 361 U.S. 98, 102
(1959); cited with approval in Beck v.
Ohio, 379 U.S. 89, 98 (1964). Moreover,
even in United States v. Ross, __ U.S.
_, 102 S.Ct. 2157, 2164, 72 L.Ed.2d
572, 583 ( 1983), a case which was
otherwise viewed as limiting the
application of the exclusionary rule, the
Court reiterated that " ... (T)he probable
cause determination must be based on
objective facts that could justify the
issuance of a warrant by a magistrate
and not merely on the subjective good
faith of the officers" (emphasis added).
Nevertheless, the Court restored
Gates to the calendar for reargument on
March 1, 1983. In a sharply worded
dissent, Justice Stevens strongly
criticized this action as one which
"raises serious questions concerning the
Court's management of its certiorari
jurisdiction" and "sheds distressing
light on the Court's conception of the
scope of its powers". Gates, supra at
436, 438.
The decision of the Court to reverse
it s position in Gates and hear
rearguments on the good faith issue was
announced in the midst of extensive
Congressional subcommittee hearings
on a variety of legislative proposais to
modify or abolish the exclusionary rule.
The Reagan Administration proposals,
embodied in S2903 and HR 7117, are
entitled the "Criminal Justice Reform
Act of 1982" and, among other things,
seek to establish a "good faith"
exception to the exclusionary rule by
amending chapter 223 of title 18, United
States Code. Under Title II of that Act,
Sec. 202(a) provides for the admission of
evidence resulting from a search or
seizure "undertaken in a reasonable,
good faith belief that it was in
conformity with the fourth amendment
to the Constitution of the United
States".
Considering the current legislative and
judicial activity which seems destined to
culminate in some modification of the
exclusionary rule, a brief review of the
development of the rule to its present
crisis state is necessary in order to
appreciate the criticism of the good faith
exception which follows and the
argument that the exclusionary rule does
not deserve its apparent fate.
The exclusionary rule was
foreshadowed in Boyd v. United States,
116 U.S. 616 (1886) and was grounded in
rights to property and privacy. In that
case the defendant was charged with the
illegal importation of goods. During
proceedings characterized by the
Supreme Court as civil in form but
criminal in nature, the Government
sought to show the quality and value of
goods imported by the defendant and
relied on a federal statute to obtain a
court order requiring the defendant to
produce his invoice for the goods.
The rule unequivocally
became part of our
jurisprudence ...
Comparing the use of illegally obtained
evidence against a defendant to
compelled self-incrimination, the
Supreme Court ·held that requiring the
defendant to produce the papers was an
invasion of his "indefeasible right of
personal security, personal liberty and
private property". Id. at 630. Thus, the
seizure was unreasonable in violation of
the fourth amendment.
The rule unequivocally became part of
our jurisprudence in the landmark case
of Weeks v. United States, 232 U.S. 383
(1914), wherein the Supreme Court held
that the exclusionary rule was applicable
to all federal courts. In its opinion
establishing the rule, the Court quoted
Boyd, supra, in recognizing the privacy
rationale for the rule and, for the first
time, expressed the judicial integrity
rationale, emphasizing that evidence
seized in violation of the fourteenth
amendment "should find no sanction in
the judgments of the courts charged with
the responsibility of upholding
constitutional rights." Id. at 392. As
mentioned in Part I of this series, Justice
Brandeis refined the concept in his
eloquent dissent in Olmstead v. United
States, supra, and it has continued to be
recognized as a legitimate basis for the
rule in such recent cases as Terry v.
Ohio, 392 U.S. 1, 13 (1968) and even in
United States v. Janis, 428 U.S. 433,458
Ii. 35 (1976). See also Dunaway v. New
York, 442 U.S. 200, 228 (1979).
In the 35 years following the decision
in Weeks, the exclusionary rule was
Going,
Part 2
3
applied without question in federal
criminal prosecutions. The concept of
the exclusionary rule as a deterrent was
introduced in Wolf v. Colorado, 338
U.S. 25 (1949), when the Supreme Court
applied the fourth amendment to the
states, but refused to extend the
exclusionary rule to them on the
assumption that other devices might be
employed by the states that would be as
effective as the exclusionary rule in
deterring fourth amendment violations.
ld. at 31 and 33. Therefore, evidence
which would have been suppressed in
federal courts was not suppressed in all
state proceedings.
After Wolf, however, the Court
encountered several cases in which state'
officers had committed serious fourth
amendment violations which "shocked
the conscience" of the Court. See, e.g.,
Rochin v. California, 342 U.S. 165
(1952) wherein the defendant was forced
to have his stomach pumped.
Eventually, this state of affairs and
the inconsistency with which fourth
amendment violations were dealt in state
and federal courts, caused the Supreme
Court to reconsider the application of
the exclusionary rule. First, in Elkins v.
United States, 364 U.S. 206 (1960), the
court rejected the "silver platter
doctrine" because it frustrated the
purposes of the. exclusionary rule.
Although recognizing the "imperative
of judicial integrity" which prohibits a
court from becoming an accomplice in
the disobedience of the Constitution, ld.
at 222, the Court ruled for the first time
. explicitly on the deterrence rationale,
stating that: "The rule is calculated to
prevent, not to repair. Its purpose is to
deter - to compel respect for the
constitutional guaranty in the only
effectively available way - by removing
the incentive to disregard it.'.' ld. at 217.
Ultimately, in Mapp v. Ohio, 367 U.S.
643 (1961), the Court overruled Wolf
and applied the exclusionary rule to the
states through the due process clause of
the fourteenth amendment. The Court
stated that the rule was a constitutional
privilege and reasoned that no person
should be convicted on evidence
obtained in violation of the
Constitution. Id. at 656. The Court also
relied upon the two justifications for the
rule that were set forth in Elkins,
namely, deterrence of police misconduct
and the imperative of judicial integrity.
Id. at 656, 660.
"The rule is calculated to
prevent, not to repair .. Its
purpose is to deter ... "
Notwithstanding the Court's language
in Mapp, soon thereafter the Court
identified deterrence as the primary
purpose of the exclusionary rule and
began to use only that rationale in order
to limit the scope of the rule. In
Linkletter v. Walker, 381 U.S. 618
(1965), the Court declined to apply
(continued on Page 4)
4 Louisville Law Examiner, March 1983
The Exclusionary Rule G
(Continued from page 3)
Mapp retroactively because such an
exclusion of evidence would not further
the deterrent purpose of the rule. Id. at
636. Although the Court continued to
periodically recognize that the rule
served other purposes in the years which
followed [See Terry v. Ohio, supra, and
Alderman v. United States, 394 U.S. 165
(1969)], it also declined to extend the
rule. Finally, in United States v.
Calandra, 414 U.S. 338 (1974), the
Court further limited the scope of the
rule in holding that a grand jury witness
may not refuse to answer questions
based on illegally seized evidence and
strongly emphasized that deterrence is
the preeminent purpose of the rule . Id.
at 349. In so doing, it revitalized the
separation of the exclusionary rule from
the fourth amendment which Wolf,
supra, initially created, and enunciated a
balancing test in Which the benefits to be
derived from extending the rule were
weighed against the costs to society in
suppressing evidence. Calandra, supra
at 350. Thus, the Court concluded that
"the rule is a judically created remedy
designed to safeguard fourth
amendment rights generally through its
deterrent effect, rather than a personal
constitutional right of the party
aggrieved. Id. at 348.
In the wake of Calandra came further
limitations on the application of the
exclusionary rule and the first
indications that a good faith exception,
such as that intimated by Chief Justice
Burger, dissenting in Bivens v. Six
Unknown Named Agents, 403 U.S. 388,
411-27 (1971), might be gaining
acceptance. In Michigan v. Tucker, 417
U.S. 433 (1974), Justice Rehnquist,
speaking for the Court, declared that
technical police error did not require the
exclusionary rule's application in a fifth
amendment context, unless the exclusion
of evidence served the rule's deterrence
rationale. Although Tucker was a fifth
amendment case, its reasoning
contributed significantly to the
development of a good faith exception
for technical violations.
Subsequently, in United States v.
Peltier, 422 U.S. U.S. 531 (1975),
involving a border search that occurred
before the Court's decision in United
States v. Almeida-Sanchez, 413 U.S. 226
(1973), the Court, again speaking
through Justice Rehnquist, held tht
Almeida-Sanchez would not be applied
retroactively to the search in Peltier
because such application would not
serve the exclusionary rule's rationales.
Peltier, supra at 542. Relying on the lack
of deterrent effect expressed in Tucker,
the Court found that "if the law
enforcement officers reasonably
believed in good faith that evidence they
had seized was admissible at trial, the
'imperative of judicial integrity' is not
offended by the introduction into
evidence of that material even if
decisions subsequent to the search or
seizure have broadened the exclusionary
rule to encompass evidence seized in that
manner." Peltier, supra at 537.
Similarly, in Brown v. Illinois, 422
U.S. 609 (1975), Justice Powell wrote in
a concurring opinion that he favored the
adoption of an approach in which
"flagrant" fourth amendment
violations would be differentiated from
... "flagrant" fourth
amendment violations
would be differentiated
from "technical"
violations ...
"technical" violations. Again, citing
Tucker's reasoning, Justice Powell
noted that the deterrence rationale
would not be served in the latter instance
and, therefore, "no legitimate
justification for depriving the
prosecution of reliable and probative
evidence" exists. Id. at 612.
Justice White, expanding on this
theme in his dissenting opinion in Stone
v. Powell, 428 U.S. 465 (1976), argued
that the exclusionary rule "should be
substantially modified so as to prevent
its application in those many
circumstances where the evidence at
issue was seized by an officer acting in
the good-faith belief that his conduct
comported with existing law and having
reasonable grounds for this belief." Id.
at 538 (emphasis added). In other words,
where the subjective belief of a police
officer that his conduct was legal is
objectively reasonable, then illegally
obtained evidence should not be
suppressed. Id. at 540. This exception,
in Justice White's view, applies to both
good faith mistakes and technical
violations of the fourth amendment. Id.
at 538-39.
To date, the Supreme
Court has not decided a
good faith mistake case ...
The good faith mistake occurs when a
police officer must assess whether he has
probable cause to act and he makes a
judgmental error, "though reasonable
men could easily differ on the
question." Id. at 539. To date, the
Supreme Court has not decided a good
faith mistake case, although that was the
basis for Part II of the Fifth Circuit's
opinion in United States v. Williams,
622 F.2d 830 (5th Cir. 1980), cert.
denied, 101 S.Ct. 946 (1981), a case
which received widespread notoriety and
is discussed infra.
Rather, the facts in Stone illustrate the
technical violation type of good faith
exception as do the facts in Peltier and
Brown, supra. Technical violations
include an officer's reliance on a statute
which is later declared unconstitutional,
a court precedent which is later
overruled, or a warrant which is later
invalidated. See Ball, Good Faith and
the Fourth Amendment: The
"Reasonable" Exception to the
Exclusionary Rule, 69 J.Crim. L. &
Criminology 635 (1978). It should be
noted that the case of a warrant later
invalidated has not been ruled upon by
any court to date and was specifically
excluded from consideration in
Williams, supra. However, the issue
may be addressed by the Supreme Court
in Gates since that case involves a
warrant.
Finally, in the Court's most recent
decision on good faith, evidence seized
pursuant to an arrest made under an
identification ordinance later declared
unconstitutional was held admissible
based on Justice White's technical
violation good faith exception.
Michigan v. DeFillippo, 443 U.S. 31, 37
(1979). The Court maintained that "to
deter police from en forcing a
presumptively valid statute was never
remotely in the contemplation of even
the most zealous advocate of the
exclusionary rule." I d. at 38, n. 3.
Against this background of criticism
and curtailment of the exclusionary rule
by the Supreme Court during the 1970's,
the United States Court of Appeals for
the Fifth Circuit, sitting en bane,
.. . Fifth Circuit, sitting en
bane, adopted a sweeping
good faith exception m
United States v.
Williams ...
adopted a sweeping good faith exception
in United States v. Williams, supra at
846. The Court states that "henceforth
in this circuit, when evidence is sought to
be excluded because of police conduct
leading to its discovery, it will be open to
the proponent of the evidence to urge
that the conduct in question, if mistaken
or unauthorized, was yet taken in a
reasonable good-faith belief that it was
proper. If the court so finds, it shall not
apply the exclusionary rule to the
evidence." ld.
The Williams decision provides an
effective vehicle for demonstrating the
numerous shortcomings of the good
faith exception and the dangers inherent
in its superficial appeal. Although the
decision initiated legislative action in
Congress (See, e.g., S 2903 and HR
7117, supra) and was endorsed by the
Attorney General's Task Force on
Violent Crime in its Final Report issued
on August 17, 1981, a closer
examination reveals that its rationale is
flawed and that its approach is much too
broad and simplistic to serve as a
practical or theoretical model for either
legislative or judicial enactment.
As indicated above, the original
premise of the exclusionary rule was
significantly altered by a successive line
of restrictive decisions handed down by
the Supreme Court, especially those
rendered since Mapp in 1961. In the
. .. Williams decision
displays a fundamental
misunderstanding of the
exclusionary rule and its
operation.
process, the exclusionary rule was no
longer considered coextensive with the
fourth amendment and the focus of the
rule as a necessary consequences of a
fourth amendment violation was
changed and reduced to the point that its
only remaining justification became the
deterrence of unlawful police conduct.
However, it is precisely on this point
that the Williams decision displays a
fundamental misunderstanding of the
exclusionary rule and its operation. The
deterence sought by the exclusionary
rule is general, not specific. Further,
despite a superficial similarity to the
analysis that the Supreme Court has
developed to withhold application of
the exclusionary rule when its deterrent
effect would only be incremental, the
Fifth Circuit in Williams actually
misapplied the analysis . Although
limiting the rule's application, as the
Supreme Court has done, often gives the
police a variety of incentives to ignore
the commands of the fourth
amendment, the Williams good faith
exception would effectively preclude
courts from even articulating those
commands. Accordingly, Williams is a
significant departure from the recent
course of Supreme Court case law. It is
one thing to deny application of the rule
when it will achieve only marginal
increments of deterrence; it is quite
another to make an exception to the rule
that will have the effect of discouraging
general police compliance with the
fourth amendment. Mertens and
Wasserstrom, The Good Faith
Exception to the Exclusionary Rule:
Deregulating the Police and Derailing
the Law, 70 Geo. L.J. at 389 (1981). An
examination of the facts in Williams and
the manner in which the Fifth Circuit
applied Supreme Court precedent clearly
supports this conclusion.
... Williams is a significant
departure from the recent
coure of Supreme Court
case law.
In June, 1976, Special Agent Paul J.
Markonni of the Drug Enforcement
Administration arrested Williams in
Toledo, Ohio for possession of heroin.
(Agent Markonni is mentioned by name
at this point because of the subjective
good faith relevance of numerous prior
fourth amendment cases in the Fifth,
Sixth and Seventh Circuits which have
addressed the legality of his actions. (See
discussion infra.) After her motion to
suppress was denied, Williams entered a
plea of guilty and received a three-year
sentence. She then appealed the denial
of her motion to suppress and was
released pending appeal. A condition of
her release was that she remain in Ohio.
Thereafter, in September, 1977,
Markonni, on assignment at the Atlanta
International Airport, recognized
Williams as she arrived on a flight from
Los Angeles. Aware of the travel
restrictions, Markonni arrested Williams
for violating her release order. In a
search pursuant to that arrest, heroin
was found on her person. Subsequently,
a search warrant was obtained for her
luggage and a large quantity of heroin
was seized. Following her indictment,
Williams moved to suppress the heroin
based on the contention that her arrest
was illegal. The district court granted the
motion and the Fifth Circuit panel
affirmed on the grounds that the agent
did not have the statutory authority to
make the arrest and that a violation of a
bond condition is not a criminal offense
per se justifying a warrantless arrest.
Williams, supra at 836.
Louisville Law Examiner. March 1983 5
ing, Going ... But Not Gone
By means of creative appellate
procedure rivaling that employed in
Gates, supra, the Fifth Circuit, sitting en
bane, reversed upon rehearing. The
Court's disposition of the case took the
extraordinary form of a two-part
opinion reversing "for the reasons
assigned in these alternate resolutions."
Id. at 833.
The first part of the opinion was
joined in by sixteen of the Fifth Circuit's
twenty-four members. They ordered
reversal of the decision suppressing the
heroin evidence after determining that
willful breach of a court order restricting
travel constituted criminal contempt, an
offense against the United States.
Because the offense was committed in
Agent Markonni's presence, he had
authority to arrest Williams and make a
search incident thereto. Therefore, the
seizure of heroin was lawful and no
fourth amendment violation occurred.
Id. at 839.
.. . casts doubt on the
Court's formulation and
application of the good
faith exception.
Thirteen judges joined in the second
part of the opinion concluding that,
even if the arrest was unauthorized,
"evidence is not to be suppressed under
the exclusionary rule where it is
discovered by officers in the course of
actions that are taken in good faith and
in the reasonable, though mistaken,
belief that they are authorized." Id. at
840. Thus, the second majority reached
the same conclusion as the first but for
an entirely different and inconsistent
reason. This fact raises several questions
about the propriety of the Court's
"alternate resolutions" approach and
casts doubt on the Court's formulation
and application of the good faith
exception.
From the outset, it is obvious that the
alternate resolution was unnecessary to
the disposition of the case and, if
anything, creates the anomalous result
that either part of the opinion can be
viewed as dictum. Clearly, the only ripe
question in the case was decided in the
first part of the opinion, namely,
whether the arrest was legal. Thus, the
good faith, reasonable "misconduct"
which the second part of the opinion
addresses is nonexistent, thereby
rendering the alternate resolution a
superfluous hypothetical. In short, as
stated in the special concurring
opinions, the case was "utilized as a
vehicle to disseminate a doctrine
unnecessary to its decision" and judicial
self-restraint should have prevented Part
II of the opinion. Id. at 848, 851.
.. . Markonni's hypothetical
mistake in arresting
Williams can hardly be
considered grounded in an
objective reasonableness.
Similarly disturbing was the
willingness of the second majority to
apply the good faith exception in the
factual situation presented by Williams
without analyzing Agent Markonni's
conduct in the good faith exception
context, thus depriving the defendant of
any opportunity to challenge the Court's
findings as to the good faith (subjective
test) and reasonableness (objective test)
of Agent Markonni's actions. As
mentioned earlier, in assessing Agent
Markonni's subjective good faith,
considerable insight could have been
gained from a review of hi~ many
encounters with the fourth amendment
which resulted in a number of published
opinions. See, e.g., United States v.
Wright, 577 F.2d 378 (6th Cir. 1978).
They demonstrate how Markonni has
consistently pushed the fourth
amendment to the limit and frequently
beyond, and arguably suggest that he
has not always acted under a good faith
belief that his conduct was lawful. See
Mertens and Wasserstrom, supra, 70
Geo. L.J. at 419-421, n. 277-292.
Furthermore, there is persuasive
evidence that Markonni's hypothetical
mistake in arresting Williams can hardly
be considered grounded in an objective
reasonableness. ld. at 417-18. Even
under the best of circumstances,
however, it would be difficult to
determine Markonni's objective
reasonableness because the Williams
court established no standard. Thus, in
the Fifth Circuit, Williams allows the
courts to apply the exception but fails to
provide guidance on the degree of proof
required. Given the inappropriate
context in which Williams sought to
adopt the exception, the shortcomings
of its application and the undefined
standard it employs, it comes as no
surprise that the Fifth Circuit is the only
circuit within the federal system that has
adopted the good faith exception.
As noted above, however, the
rationale of the Williams decision
reflects the justifications generally
advanced by proponents of the good
faith exception and, in that respect,
serves as a useful vehicle for illustrating
the flaws in the exception itself.
The Williams court began its
presentation of the good faith exception
by quoting a commentator's definition
of "good faith mistakes" and
"technical violations" as the two basic
types of good faith violations in fourth
amendment cases. Williams, supra at
840-41 [quoting Ball, supra, 69
J.Crim.L. & Criminology 635 (1978)].
The court asserted that application of
the rule "Must be considered in light of
its direct effect of preventing the 'whole
truth' from being told and its
byproducts of freeing guilty criminals
and endangering society." I d. at 842. As
a consequence, the court concluded,
"the rule is not applied in those contexts
where it does not effectively deter
official misconduct." Id. By way of
explanation, the court noted that "it
makes no sense to speak of deterring
police officers who acted in the good­faith
belief that their conduct was legal
by suppressing evidence derived from
such actions unless we somehow wish to
deter them from acting at all." I d. While
this reasoning appears persuasive at first
blush, it ultimately fails to make a
convincing case for adopting the good
faith exception.
First of all, the argument that the
deterrence rationale warrants a good
faith mistake exception envinces a basic
misunderstanding of the deterrent value
of the exclusionary rule. As Justice
Brennan pointed out in United States v.
Peltier, supra, "the exclusionary rule
does not depend in its deterrence
rationale on the punishment of
individual law enforcement officials.
Indeed, one general fallacy in the
reasoning of critics of the exclusionary
rule is the belief that the rule is meant to
deter official wrongdoers by punishment
or threat of punishment." Id. at 556
(Brennan, J., dissenting). Rather, the
exclusionary rule serves to remove the .
inducement for all police officers to
violate the fourth amendment.
. .. the exclusionary rule
serves to remove the
inducement for all police
officers to violate the
fourth amendment.
The Williams court ignored the
plainly visible systemic deterrence
illustrated, in part, by the development
of extensive, high-quality police training
programs in constitutional rights that
did not exist prior to Mapp v. Ohio,
supra. See also, Sachs, "The
Exclusionary Rule Bills," Hearings
before the Senate Judiciary Committee,
Subcommittee on Criminal Law (1982)
at 41. Even Professor Ball, from whom
the Williams court borrowed its
definitions of the good faith exceptions,
concedes that the exclusionary rule has
accomplished ''increased police training
and awareness about their
responsibilities." Ball, supra, 69
J.Crim.L. & Criminology at 656 (1978).
Mertens and Wasserstrom illustrate the
significance of a department's
commitment to fourth amendment
values, noting Delaware and
Washington, D.C. police departmental
changes in procedure in response to
Delaware v. Prouse, 440 U.S. 648
(1979). 70 Geo. L.J. at 339-401.
The proper inquiry, then, is not
whether the subsequent application of
the exclusionary rule will deter a police
officer who ~']as acted in the good faith
belief that he was right, but rather
whether applying the exclusionary rule
will reduce the number of fourth
amendment violations in the future at an
acceptable cost. ld. at 431.
... the rule has extremely
minimal impact on the
results of criminal
prosecutions.
Empirical evidence on the evidentiary
costs of the exclusionary rule within the
federal system demonstrates that the
rule has extremely minimal impact on
the results of criminal prosecutions. In a
1979 study conducted in 38 United
States Attorneys' offices throughout the
country, the General Accounting Office
found that in less than half the cases
involving a search or seizure was a
motion to suppress even filed and that in
only l.30Jo of those cases was evidence
excluded as a result of motions to
suppress. "Impact of the Exclusionary
Rule on Fedral Criminal Prosecutions,"
GAO Report at 9-11. Even where a
motion was granted in whole or in part,
the rate of conviction remained over
500Jo (as compared with an 840Jo
conviction rate in cases where motions
had been denied). Id., at 13. Overall, a
finding of illegal search and seizure
resulted in dismissal or acquittal in only
0.70Jo of the cases studied. Moreover, in
cases where prosecution was declined,
search and seizure considerations played
no part whatever in the decision not to
prosecute in all but 0.40Jo of the cases.
Id. at 13-14.
Two other studies, one of
prosecutions in Washington, D.C., and
other cities by the Institute for Law and
Social Research (lnslaw) and the other in
New York City by the Vera Institute of
Justice, provide further support. Inslaw
found that while fourth . amendment
issues,
may be substantial in terms of legal
theory, they appear to have little
impact on the over-all flow of
criminal cases after arrest. Geller,
''Is the Evidence in on the
Exclusionary Rule?" 67 ABA J.
1642, 1644 (1981).
The Vera Institute concluded further
that the exclusionary rule "does not
seem to produce dismissals in cases
brought into the criminal process in
which the searches are probably illegal
and the evidence could be suppressed."
Id. The Vera study found that in many
cases presenting potentially meritorious
search and seizure questions, the parties
compromised and settled on negotiated
pleas to lesser charges.
... a police officer cannot
be deterred from violating
the Constitution unless he
knows that his actions are
in fact unconstitutional ...
Professor LaFave has also -written
that, "(T)here is reason to believe that
the 'cost' of the exclusionary rule, in
terms of acquittals or dismissed cases, is
much lower than is commonly
assumed." LaFave, Search and Seizure,
§l.2n9 (1981 Supp).
The American Bar Association, which
"strongly supports retention of the
exclusionary rule" on constitutional arid
practical grounds, has concluded that
the "rule is not responsible for hordes of
criminals going free" and that "a
dispassionate examination of the facts
belies the mythology surrounding the
rule." 67 ABA J 1614 (1981); see also
Greenhalgh, Senate Subcommittee
Hearings at 76.
In fact, in many cases, convictions are
obtained on retrial without the use of
illegally seized evidence. See, e.g.,
Coolidge v. New Hampshire, 403 U.S.
443 (1971); Davis v. Mississippi, 394
U.S. 721 (1967); and Bumper v. North
Carolina, 391 U.S. 543 (1968). Cf.
Mertens and Wasserstrom, supra, 70
Geo.L.J. at 445-446.
Because a police officer cannot be
deterred from violating the Constitution
unless he knows that his actions are in
fact unconstitutional, future fourth
amendment violations can only be
deterred if courts examine police
(continued on page 6)
6 Louisville Law Examiner, March 1983
The Exclusionary Rule
Going ... But Not Gone
Going,
Part 2
(from page 5)
misconduct without regard to its good
faith. Thus, the good faith exception to
the exclusionary rule is not consistent
with the Williams court's deterrence
justification for the approach. Id. at
431-32.
... the DEA agent acted
according to his own
good faith
The second major defect in Part II of
the Williams opinion is its misleading
use of precedent in an effort to justify its
good faith exception. In reality, the
Fifth Circuit had no strong precedent to
support the sweeping exception to the
ex~lusionary rule which it created. The
factual situation which the court posed
was significantly different from the
facts of the cases upon which the court
relied, particularly in that all previous
cases in which the technical violation
exception was adopted the issue of
retroactivity was involved. Most
notably, the Williams court relied upon
Finally, although the Williams court,
claimed that a good faith exception does
not diminish fourth amendment
protections, the foregoing analysis
indicates that the exception would have
a devastating impact. "Restricting
application of the exclusionary rule to
instances of bad faith would invite law
enforcement officials to gamble that
courts would grant absolution for all but
the most egregious conduct. Since
judges do not lightly cast aspersions on
the motives of government officials, the
suppression doctrine would be relegated
to those rare circumstances where a
litigant can prove insolent or calculated
indifference to agency regulations."
United States v. Carceres, 440 U.S. 741,
766 (1979) (Marshall, J ., dissenting).
Further, Professor Kaplan, a critic of
the exclusionary rule, has stressed that
such an exception "would put a
premium on the ignorance of the police
officer and, more significantly, on the
department which trains him. A police
department dedicated to crime control
values would presumably have every
incentive· to leave its policemen as
uneducated as possible about the law of
search and seizure so that a large
percentage of their constitutional
violatons properly could be labeled as
inadvertent." Kaplan, The Limits of the
Exclusionary Rule, 26 Stan.L.Rev.
1027' 1044 (1974).
Michigan - v. DeFilhppo, supra, to- --------------­support
the technical violation facet of
its exception. However, unlike
DeFillippo where an ordinance was later
declared unconstitutional by an
appellate court, in Williams the DEA
agent acted according to his own good
faith interpretation of a federal statute,
not in conformance with an accepted
administrative or judicial determination.
This crucial distinction was present in
the other cases Williams cited as well. In
those cases, including Peltier, the arrest
·was legal under prevailing law at the
time it was effected. In the Williams
hypothetical it was not.
.. . a good faith exception
does not diminish fourth
amendment protections,
Even more inappropriate was the
authority cited by the Williams court in
support of the good faith mistake facet
of the exception. The court relied
principally on United States v. Janis,
428 U.S. (1976), to justify this type of
exception. However, that part of the
Janis opinion dealing with good faith
concerned a technical violation rather
than a factual mistake and it was
obviously collateral to the holding in the
case. Therefore, Janis had no
precedential value. Moreover, the Fifth
Circuit cases cited by the Williams court
are clearly inapposite. Thus, Williams
offered no precedent in support of the
good faith mistake facet which was the
type of good faith exception applicable
to the facts in Williams.
.. . a good faith exception
will effectively halt the
development of fourth
amendment law.
Of even greater concern is the fact
that a good faith exception will
effectively halt the development of
fourth amendment law. United States v.
Peltier, supra at 554 (Brennan, J.,
dissenting). A good faith exception for
technical violations will stifle litigation
that otherwise would identify such
violations. An exception for good faith
mistakes will erode the substantive
standards of the fourth amendment, not
merely affect the application of the
exclusionary rule. Mertens and
Wasserstrom, supra, 70 Geo.L.J. at 430.
In effect, the exception will swallow the
rule, leaving a right without a remedy. A
distressingly broad range of misconduct
will be excused under the good faith
exception because use of the exception
almost surely will change the fourth
amendment standard for searches and
seizures from probable cause to general
reasonableness. ld. at 372. See also Ball,
supra at 655-56.
... the exception will
swallow the rule, leaving a
right without a remedy.
Lastly, the good faith mistake
exception causes two significant
administrative problems, namely, an
added fact finding operation and an
... the good faith mistake
exception causes two
significant administrative
problems, namely, an
added fact finding
operation and an
untjefined standard of
''objective
reasonableness."
undefined standard. of "objective
reasonableness.'' The exception requires
courts to adjudicate an objective
element, as is currently done with
probable cause, and an added subjective
element. 57 Notre Dame Law. at 135
(1981). This will require the parties to
inquire into the subjective intent of
police officers resulting, undoubtedly, in
an unrealistic and unfeasible exercise in
futility. Further, a good faith standard
would necessarily require a case-by-case
approach which would be extremely
time consuming and difficult to apply
with any degree of consistency or
uniformity. An analogous rule was
rejected by the Supreme Court in Irvine
v. California, 347 U.S. 128 (1954),
where Justice Jackson, in his plurality
opinion, "declined to introduce vague
and subjective distinctions" into rules
for the administration of constitutional
rights. Id. at 134.
Notwithstanding these considerations
however, as the foregoing review of the
Supreme Court's decisions in the area of
fourth amendment law during the 1970's
indicates, four sitting justices of the
Supreme Court have expressed
agreement with some form of a good
faith exception. Furthermore, in her
... the underlying
sentiments on the Court
portend a significant
alternation of the
exclusionary rul in the
Gates decision.
testimony at nomination hearings before
the Senate Judiciary Committee, Justice
O'Connor indicated that she would be
receptive to an exception. See Mertens
and Wasserstrom, supra, 70 Geo.L.J. at
370, 371, n.32 (1981). In addition,
although Justice Blackmun has espoused
no express intent to support a good faith
exception, his majority opinion in
United States v. Janis, supra, has
contributed to its development. See 57
Notre Dame Law. at 121 (1981). Thus,
the underlying sentiments on the Court
portend a significant alteration of the
exclusionary rule in the Gates decision.
It is a matter of common knowledge
that the exclusionary rule has come
under mounting criticism in recent years
as a perceived obstacle thrust upon law
enforcement agencies by the courts. The
Burger Court's treatment of fourth
amendment issues in the past decade
suggests that it is not only attuned to the
prevailing political atmosphere
surrouqding the continued existence of
the rule but is also sympathetic to
modifying the exclusionary rule in order
to advance law enforcement interests.
Conventional wisdom appears to
indicate a ruling in favor of an expanded
technical violaton good faith exception.
Regardless, the compelling language of
Justice Stewart in Coolidge v. New
Hampshire, 403 U.S. at 455 (1971),
.. .If times have changed,
reducing every man's scope
to do as he pleases in an
urban and industrial
world, the changes have
made the values served by
the Fourth Amendment
more, not less,
important."
echoing the sentiments of Justice
Brandeis in Olmstead, supra, is
especially pertinent at this juncture in
the interpretation of the fourth
amendment:
"In times of unrest, whether
caused by crime or racial conflict
or fear of internal subversion, this
basic law and the values that it
represents may appear unrealistic
or "extravagant" to-some. But the
values were those of the authors of
our fundamental constitutional
concepts. In times not altogether
unlike our own they won - by
legal and constitutional means in
England, and by revolution on this
continent - a right of personal
security against arbitrary
intrusions by official power. If
times have changed, reducing
every man's scope to do as he
pleases in an urban and industrial
world, the 'changes have made the
values served by the Fourth
Amendment more, not less,
important."
Correction ...
In the last issue of The
Examiner, it was reported
that projects completed by
the Student Legal Research
Group are sent directly to a
court of law. As a totally
student-operated
organization, all research
products are returned directly
to the Attorney. S.L.R.G. is
not authorized to practice
law and does not prepare any
work to be submitted directly
to a court of Law.
Our Apologies.
~q 1 1 , , . . •!I ' " " •• · ' I .• <
Louisville Law Examiner .• March 1983 7
HEARSAY ...
1978
GARY A. BENFORD of Garland,
Texas has been promoted to Senior
Attorney in the Office of Chief
Counsel, Dallas District Counsel,
I.R.S.
He has recently completed all the
requirements for the degree of LLM
in Taxation at Southern Methodist
University.
1980
TOM McDONALD of Louisville
has filed as a candidate for Jefferson
DistriCt Court Judge. He presently
serves Jefferson County as a pro­secutor
in addition to maintaining a
private law practice.
Please direct information for
HEARSAY to:
Bill Savarino, Editor
Louisville Law Examiner
University of Louisville
School of Law
Louisville, Kentucky 40208
RANARD'S PICTURE
SHOW
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John Ranard 502-584-8747
Student Trial
Lawyers
Association
Formed
By Judy Hoge
"If the weaknes of the apprentice
system was to produce advocates
without scholarship, the weakness
of the law school system is to turn
out scholars with no skill at
advocacy."
Justice Robert Jackson
United States Supreme Court
The Student Trial Lawyers Association
has been established at the University of
Louisville School of Law. The primary
purpose of the STLA is to supplement
law students' education in all phases of
trial advocacy and technique. This is ac­complished
through the presentation of
seminars and video recordings pertain- ·
ing to basic litigation skills.
STLA is sponsored by the American
Trial Lawyers Association and the Ken­tucky
Academy of Trial Attorneys. Stu­dent
members will receive all ATLA and
KAT A publications (valued at more
than $100 annually) and reduced rates
on seminars.
Barry Willett was recently elected
President. Vice-President is Mark
Travis; Secretary is Mark Brown; and
Treasurer is Michael Gillenwater. Pro­fessor
Russell Weaver is faculty advisor.
Elections for 1983-84 officers are
scheduled for April.
Dues are $25 for first-year students,
$20 for second year, and $15 for third­year.
This is a one-time fee. interested
students should contact Barry Willett in
Room 085, or at 588-6399.
Dean Lewis (left) and Professor Teitelbaum (right) recieve gift from Law Grad
Adolph Davis.
Photo By Mark Ashburn
Attorney Nick King of Franklin and King presents the first STLA seminar on
Litigation Skills. Mr. King is also a lecturer at the Law School.
Photo By Mark Ashburn
''0 ldest Living
Aluntnus'' ntakes gift
to Law Library
By Mark Ashburn
On February 21, Adolph Davis gave a
gift of $5,000 to the Law School Library
for the purpose of purchasing books on
the subject of legal ethics.
Born May 20, 1887, Adolph Davis
characterized himself as the oldest living
alumnus of the University of Louisville
School of Law. At 95 years of age he is
very active. During our interview he was
wearing a campaign button for a
Secretary of State candidate running in
the next election. When asked whether
he still gets out to vote he indicated that
he never missed; saying with a smile,
"I've got opinions yet."
Born and raised in Frankfort, he came
to Louisville to attend a preparatory
school. His undergraduate work was
completed at the University of
Louisville. He graduated from Law
School in 1909 and took the Kentucky
Bar on his 21st birthday. He then went
back to Frankfort to practice, but was
only able to practice for 3 years. His
oldest brother became ill and he felt
obligated to help with the family
business, a men's clothing store located
in Frankfort. After his brother's health
returned he was unable to resume his
practice because he was then married
and had to support his wife. He stayed
with the store until his retirement.
Only nine other persons graduated in
the 1909 class with Mr. Davis. Back then
only about 20 people were enrolled in
each course. Mr. Davis remembers the
Law School as having spittoons all
around and he specifically recalls one
'Professor calling his aside and telling
·him that he wouldn't make a good
·lawyer because he was the only member
•of the class who didn't "chew".
Mr. Davis' gift was welcomed by
Dean Lewis and Professor Teitelbaum,
the Law Librarian, and is very much ap­:
preciated by the entire Law School com­•
munity.
8 Louisville Law Examiner, March 1983
CALENDAR
OF EVENTS
Senior Prom April 9
Last day of classes April 19
Reading days April 20-22
Exams April 23-May 6
Ball on the Belle May 10
Commencement May·15 (Sun)
P.J. CLAY
Visual CArts
uri worl /or /ria/ ..AIIort"''JJ
, l.uiJ - JNau ·in<p - <J""F~J
502·241·5541
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~ \! ~ ~is/ John M. Ha,an ~ u \l 2 4 L 1 0 B'andei'
Lou1svil e
Law Examiner
VolumeS
SBA Officers
elected
.•.•........•.•......• page 1
Mock Trial
concludes
...•.•••.............. page 1
Brandeis Brief
continues with
part 2 on The
Exclusionary Rule
..•••.•.......•••..... page 3
Gift made to
Law Library
........••••.•••...... page 7
March, 1983 Number 5