final exam – essay

Final Exam – Part 1 – Choose 1 of the three Prompt options #1, #2, or #3 (Approximately 2.5 to 3 double spaced pages).

a) What is judicial review? Why is it a critical component of checks and balances and/or separation of powers? Clearly explain what is meant by “judicial activism” and “judicial restraint.” (Hint review the classwork from the Critical Thinking text, 9.2.)

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b) Congratulations! You are now a California Appellate Court Justice. In a detailed and analytical way, how would you rule on this case? (Also, consider what questions you would want answered in relation to this case.)

On August 23, 2012, three Lancaster, California, police officers arrived at the home of Bud Davis, whose rap-sheet was several pages long with several arrests and convictions for misdemeanor assault and felony burglary and drug charges. Furthermore he had recently served time in Folsom State Prison for burglary. The police officers accused him of harboring a person wanted for questioning, and charged him with concealing narcotics at his home. On his attorney’s advice he refused to admit the police officers without a proper warrant.

After notifying headquarters the police maintained a watch until reinforcements arrived. When they knocked on the door Davis’s daughter, Amy, answered. The officers produced a scrap of paper, allegedly a warrant, and asked her if they could search the premises. When the officers entered the house, Mr. Davis demanded to see the warrant. He snatched the paper from the officer, but in the ensuing struggle the officer recovered it. It was later determined to not be a proper warrant. A search of the bedroom produced a 3-pound bag of substance believed to be cocaine. Mr. Davis said it belonged to a former tenant. Nonetheless Mr. Davis was convicted in Los Angeles Superior Court of possession and, with numerous priors, sentences to 5 years in prison. His case, as stated at the onset, is under appeal.

The Fourth Amendment says the right of the people to be secure “against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath and affirmation and particularly describing the place to be searched, and the persons or things to be seized.” The prosecution contended the police were given permission to enter by the daughter and, hence, whether or not there was a warrant was not important. The U.S. Supreme Court has upheld exceptions to the need for a warrant in the United States v. Leon (1984), if the officers, in good faith, believe they were given permission to enter.

The defense claims that the police did not use good faith and the full protection of the Fourth Amendment should be afforded to Mr. Davis. How would you rule? Carefully explain your decision.

PLEASE NOTE: For Essay #3: You (Congratulations Judge!) have to make several elaborations on the fact situation in the case in order to make a thoughtful decision. There are least 3 key areas. The first would be the daughter Amy. Write several sentences in describing her. Is she 4 years old, and in pre-school? Or is she 34 and a Professor of Law at UCLA? Is she mentally disabled? Is it possible she understands (or not) the need for a warrant? How about the literal condition of the warrant? Was it in fact a “scrap of paper?” Or was it simply a mistaken warrant with the wrong name or wrong case? (This can happen.) The good faith issue mentioned in Leon (1984) is significant in this case. Another key issue is how long Mr. Davis had lived at the residence? Since he claimed the cocaine belonged to a prior tenant, his argument has much more credibility if he had lived there for only a few days or even weeks. So, in your essay you need to at least spend a long paragraph elaborating on the fact situation. Then proceed to make your decision whether to accept or deny the appeal. From there be sure to carefully explain your reasons.

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