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37. Should the court grant the employee's motion?
Assume that a clear precedent from the state's highest court would result in a finding that the conduct of the police in making the recording violated the employee's rights under the state constitution, and that excluding the recording is the proper remedy.
The employee was charged with the robbery in state court. He has moved to suppress the recording on the grounds that the method of obtaining it violated both his federal and his state constitutional rights.
After a liquor store was robbed, the police received an anonymous telephone call naming a store employee as the perpetrator of the robbery. Honestly believing that their actions were permitted by the U.S. Constitution, the police talked one of the employee's neighbors into going to the employee's home with a hidden tape recorder to engage him in a conversation about the crime. During the conversation, the employee admitted having committed the robbery.
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C is correct. Even if there was no violation of the U.S. Constitution, the state has the right to offer broader protections to its citizens. Because the highest state court would have found, under clear precedent, that the conduct of the police in making the recording violated the employee's rights under the state constitution, excluding the recording is the proper remedy.
A is incorrect. Even if there was no violation of the employee's rights under the U.S. Constitution, his rights under state constitutional law were, in fact, violated. Ramos allows states to offer greater protection than the federal government, and therefore, the clearly established state precedent would ensure that the employee's motion was granted.
B is incorrect. Even if the police were acting with good faith that they could properly record the conversation between the informant and the employee under the U.S. Constitution, the state had granted broader protections applicable at the time, which prevail. As such, the employee's rights under state constitutional precedent were violated and the court should grant his motion.
D is incorrect. It does not violate the Fourth Amendment for the government to secretly record a conversation between a defendant and an undercover informant. See United States v. White, 401 U.S. 745 (1971).