Cutting Edge Criminal Appellate Advocacy
Last spring, Ashley Oppenheim, May '09 grad, a student in the advanced topic section of Criminal Appeal Advocacy, was assigned an appeal involving a drug conviction stemming from a car stop and subsequent search incident to arrest. On April 21, 2009, after Ashley had been working on the brief a few weeks, the United States Supreme Court decided Arizona v. Gant, which substantially limited law enforcement officers from making searches incident to arrest fishing for evidence that was unrelated to the offense of arrest. Suddenly, Ashley's case looked like a clear winner. The facts of her case and Gant were almost exactly on point. In fact, when the state filed its response, it admitted that the search violated the Fourth Amendment.
But the state did not concede that the conviction should be reversed. Citing a post-Gant Tenth Circuit case, the state argued that the exclusionary rule should not apply in Ashley's case. Because of the importance of the issue, the case has been transferred to the Kansas Supreme Court and will be argued by Professor Hodgkinson this December. Other courts, notably the Ninth Circuit, have disagreed with the Tenth Circuit's rationale and the issue seems likely to be taken up by the United States Supreme Court to resolve the conflict. This is just an example of a real case with a real client being decided based on United States Supreme Court case law developing even as the student worked on the brief.
