SUPPRESSION OF EVIDENCE IMPROPERLY SEIZED
Suppression of Illegally Seized Evidence
Where the government has illegally seized evidence, the aggrieved party may file a motion to suppress the evidence from introduction in court against that party or person. The usual procedure which the wronged party follows involves the filing of a pretrial motion to suppress the evidence with a request to have the property returned to the defendant. A hearing will be held to determine whether the defendant has a legal basis to complain about a violation of Fourth Amendment Rights and whether, under the circumstances, the government violated the personal rights of the defendant. If the judge agrees with the defendant, the evidence will be ruled inadmissible and where the judge believes that no violation occurred, the evidence will be admissible unless excluded by the substantive rules of evidence.
Although, the literal language of the Fourth Amendment protects people against unreasonable searches and seizures conducted by governmental agents, once a violation has occurred, there is no way to undo the wrong. The defendant cannot be restored to the status quo prior to the search. Since the Fourth Amendment is not self-enforcing and its text fails to provide any remedy for a governmental violation, the remedy mentioned above is the proper procedure to pursue. Cases decided prior to 1914 never addressed concerns related to a remedy because the evidence illegally seized was frequently excluded on other constitutional grounds. See Boyd v. United States, 116 U.S. 616 (1886). In Weeks v. United States, 232 U.S. 383 (1914), the Supreme Court adopted the current practice of excluding illegally seized evidence from use at federal trials to prove guilt.
Basis for the Exclusionary Rule
The philosophy underpinning the exclusionary rule is predicated on the belief that if the courts were to permit the use of illegally seized evidence, the courts would be condoning the illegality, and perhaps even becoming indirect participants, of Fourth Amendment transgressions. In order to maintain judicial propriety, courts should not sanction Fourth Amendment illegality by allowing prosecutors to introduce the fruits of illegal searches. In addition, by removing the incentive for law enforcement officials to violate the Amendment, the exclusionary rule encouraged respect for the Fourth Amendment.
Although the Fourth Amendment and the Exclusionary Rule clearly apply to limit federal criminal practice, the same cannot be said for searches and seizures occurring outside the territorial jurisdiction of the United States. According to the Court, there is no evidence that the drafters of the Fourth Amendment intended it to have extraterritorial effect or to be applied to foreign nationals or their property when located in foreign territory. See United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).
The Silver Platter Doctrine
While the Court designed the exclusionary rule to limit federal law enforcement officials, state and local police remained free to search and seize, and prosecutors continued to use such evidence without any federal limitation. In actual practice, state officials conducted searches, which would have been considered illegal if done by federal officials, and then transferred the evidence to federal prosecutors. Such evidence was considered admissible in federal courts since no federal official had committed any violation of the Fourth Amendment and neither the Fourth Amendment nor the exclusionary rule applied to state officials. This practice of evidence transfer was known as the "silver platter doctrine."
State criminal practice moved to conformity with the federal standard when the Weeks exclusionary rule was held to apply to the states in Mapp v. Ohio, 367 U.S. 643 (1961), Infra, This Lesson. The Court determined that the constitutional guarantees of the Fourth Amendment were incorporated into the Due Process Clause of the Fourteenth Amendment, and thus required state criminal procedure to follow the federal model. With a view toward enforcing the Fourth Amendment against the states, the Mapp Court thought it necessary to make the Weeks-based exclusionary rule applicable against the states. The net effect of Mapp was to make state and federal Fourth Amendment practice subject to the same limitations with respect to search and seizure.
Exclusion of Derivative Evidence
The Court expanded the sweep of the exclusionary rule to require suppression of evidence derived from other illegally obtained evidence. In Wong Sun v. United States, 371 U.S. 471 (1963), Infra, Next Lesson, the Court voted to exclude evidence which law enforcement officials had obtained by exploiting an initial Fourth Amendment violation to discover evidence at a second location. The Court held that the evidence in the second location would never have been discovered "but for" the agent's initial violation of the Fourth Amendment. The Wong Sun "Fruit of the Poisonous Tree Doctrine" permits a defendant to exclude evidence seized from locations for which that defendant possessed no constitutional expectation of privacy. The result of expanding the Mapp holding to exclude derivative evidence from court served to enhance respect for Fourth Amendment by removing much of the incentive to conduct illegal searches and seizures.
Limitations on the Exclusionary Rule
Although supportive of defendant rights, the "Fruit of the Poisonous Tree Doctrine" has three theories which limit its exclusionary effect. The independent source rule, Murray v. United States, 487 U.S. 533 (1988), Infra, Next Lesson, the rule of inevitable discovery demonstrated by Nix v. Williams, 467 U.S. 431 (1984), Infra, Next Lesson, and the doctrine of attenuation described in Wong Sun, Infra, Next Lesson, and all permit prosecutorial use of evidence illegally seized. In these exceptional situations, the Supreme Court majority believed strict application of the exclusionary rule would not have significantly altered the conduct or practice of law enforcement officials. Where there is an absence of, or a limited, deterrent effect, the rationale of the exclusionary rule is not enhanced and courts refuse to suppress the evidence.
In cases where police have run afoul of the Fourth Amendment, but where an alternative or parallel legal method of discovery of evidence exists, courts generally do not exclude the evidence. In one case, law enforcement officials conducted an illegal search which produced evidence of criminal activities. Since this information was not used as part of the foundation for probable cause, the subsequent warrant-based search was not invalidated on Fourth Amendment grounds. See Murray v. United States, 487 U.S. 533 (1988), Infra, Next Lesson. So long as sufficient untainted evidence supports the existence of probable cause, warrants obtained in situations where the government has committed illegal activities will not result in the fruits of the searches being suppressed. In essence, where the evidence observed during an initial illegal search has not been used to produce probable cause and probable cause can be established by an independent source untainted by any illegality, courts generally uphold the validity of the warrant. Therefore, there is no reason to exclude evidence which has a lawful and independent source because law enforcement officials followed a lawful method of discovery.
Courts have recognized an additional exception to the Mapp exclusionary rule and the fruits of the poisonous tree doctrine called the rule of inevitable discovery. Under this theory where law enforcement officers find evidence through illegal means, but would have discovered the same evidence through legal means, the evidence should not be excluded from use at trial. According the Court in Nix v. Williams, 467 U.S. 431 (1984), Infra, Next Lesson, "Exclusion of physical evidence that would inevitably have been discovered adds nothing to either the integrity or fairness of a criminal trial." In a situation involving a clear case of inevitable discovery, the police would have obtained the evidence if no illegality had taken place, and to exclude the evidence would place the police and prosecution in a worse position than if no Fourth Amendment transgression occurred. Under this theory, the government must show that the contested evidence actually would have been discovered within a reasonable time.
The "Fruit of the Poisonous Tree Doctrine" of Wong Sun v. United States, 371 U.S. 471 (1963) and the doctrine of attenuation have their genesis in the case of Nardone v. United States, 308 U.S. 338 (1939). Where the evidence has been illegally seized, the government may argue that, although the evidence was obtained in violation of the Constitution, the evidence has been "purged" of its taint because the search and the discovery were so separated by time or events which have transpired since the search. In Wong Sun, two of the defendants returned to attempt to make a deal with the police. Several days had passed since the illegal searches and seizures so that the defendants had sufficient time to make an independent assessment concerning the merits of confessing to the police. The obtaining of the confession evidence was sufficiently separated from the illegality of police conduct as to not have been intimately influenced by the earlier illegal search and was, therefore, not excludable on Fourth Amendment grounds.
The Good Faith Exception to the Exclusionary Rule
Where police officers act in objective good faith in following the directives of a warrant, the Court has recognized the desirability of an exception to the application of the exclusionary rule. In the companion cases of United States v. Leon, 468 U.S. 897 (1984) and Massachusetts v. Sheppard, 468 U.S. 981 (1984), the Court adopted the "good faith" exception to the exclusionary rule. The two cases involved errors made by judges in issuing legally defective search warrants wherein the mistakes were not readily apparent to police officers. Proper procedure had been followed by the officers who were not in a position to question the legality of the warrant issued by the judicial official. In both cases, the officers executing the warrants acted in objective good faith. Since the purpose of the exclusionary rule was to deter illegal police conduct and not to alter judicial behavior, where police act in "good faith," the exclusionary rule cannot have its deterrent effect. In situations where the rationale of the rule is not enhanced, the reason for the remedy of exclusion disappears and the evidence should be admitted to court. Secondarily, the Court noted that there was no evidence to suggest that the judges or magistrates ignore or attempt to subvert the Fourth Amendment. The Court could perceive no basis for believing that evidence excluded pursuant to a defective warrant would have a significant deterrent effect on judicial officials. In essence, the Court held that since the exclusionary rule was originally designed to alter police conduct, courts should not use it to punish errors of judges and magistrates.
Standing
Any person who wishes to suppress evidence alleged to have been illegally seized in violation of the Fourth Amendment must demonstrate that the government has violated some personal expectation of privacy. The right of privacy may be demonstrated by proof that the defendant had a possessory interest in the searched property, that the accused was legally occupying the premises, or that proof of possession of the seized evidence was a crucial to proof of guilt. The government must have seized the evidence from a place where the defendant personally had a right to privacy which society generally recognizes as reasonable. Only where the evidence is sought to be used against the one asserting the privacy right does that individual have standing to suppress the evidence. However, having standing does not ensure suppression of the evidence; it only allows that individual the opportunity to argue that the evidence should be excluded. Assuming proof of standing can successfully be made, the court will permit a defendant to argue that his personal Fourth Amendment rights were violated.
In a case involving standing, Rakas v. Illinois, 439 U.S. 128, (1978), Infra, Next Lesson, the Court held that a mere guest riding in a passenger car had no expectation of privacy in the automobile since he did not assert that he was either an owner or lessee of the vehicle. Since he lacked a sufficient connection to the automobile, the trial court properly refused to entertain his motion to suppress on the theory that Rakas lacked standing. The one individual who could have demonstrated standing would have been the owner, but the owner would have possessed standing only to suppress evidence if the owner were accused of criminal activities. The owner of the car could not attempt to suppress evidence sought to be used against a person with no expectation of privacy in the motor vehicle, since Fourth Amendment rights are personal and cannot be asserted vicariously.
The Rakas case called into serious question the rule of automatic standing from Jones v. United States, 362 U.S. 257 (1960). Under Jones, standing was considered automatic where the defendant had been charged with a crime involving possession or was legitimately on the premises (an apartment). In United States v. Salvucci, 448 U.S. 83 (1980), Infra, Next Lesson, the Court overruled the rule of automatic standing in Jones by deciding that something more than "legitimately on the premises" was required in order to demonstrate standing. The Salvucci Court noted that the reason for automatic standing had ceased to exist because, in the period between Jones and Salvucci, the Court had determined that a defendant could admit possession for Fourth Amendment purposes and not have that admission used against the defendant at a trial for possession of the article. See Simmons v. United States, 390 U.S. 377 (1968). According to the Rakas Court, a prosecutor could simultaneously claim that a defendant possessed the seized article criminally, but did not have sufficient possession of the article to have been subjected to a Fourth Amendment violation.
Vicarious Standing not Permitted
Following the Salvucci decision, a person who wished to suppress evidence alleged to have been illegally seized must explain precisely how that person's personal Fourth Amendment rights have been violated. Generally, a defendant must be able to demonstrate a significant proprietary or possessory interest in the property in order to demonstrate sufficient standing. A person has no standing to suppress evidence where a third party's premises have been illegally searched since that person could have possessed no legitimate expectation of privacy at a third party's home.
However, even where a proprietary or significant possessory interest has not been proven, permission to use a room may prove sufficient to enable a defendant to successfully demonstrate standing. In Minnesota v. Olson, 495 U.S. 91 (1990), Infra, Next Lesson, the legitimate occupier of an apartment had permitted Olson to stay in one of the rooms. He did not pay rent or have a key but the understanding between Olson and the occupant allowed him to stay in the apartment. The Olson Court noted that from the view of an overnight guest, "...he seeks shelter in another's home precisely because it provides him with privacy..." Since Olson's expectation of privacy was rooted in common understandings that are recognized by our society, the Court decided that he possessed standing to argue a motion to suppress evidence.
Third parties may allege standing due to the relationship between them and the seized property. The attempt to create standing does not frequently bring success as demonstrated by United States v. Padilla, U.S. (1993), where members of a criminal conspiracy involved in drug trafficking attempted to allege that they had an expectation of privacy by virtue of being managers in the criminal enterprise. Law enforcement officials had seized an automobile involved in the transportation of the drugs at a time when the leaders of the operation were not present with the vehicle. The drug kingpins' attempt to create or allege standing under the Fourth Amendment ran aground when they could demonstrate no personal expectation of privacy which had been violated.
Summary
Evidence obtained by violation of the Constitution may be suppressed by persons whose personal Constitutional rights have been violated. While most evidence which is the subject of suppression from trial is alleged to have been illegally seized by virtue of a Fourth Amendment violation, similar rules of exclusion apply to other violations of the Constitution which produce evidence. The theory of the exclusionary rule contemplates that by removing the incentive to violate the Constitution, law enforcement officials will be less likely to transgress the dictates of the law. Where the theory behind the exclusionary rule does not have the effect of deterring law enforcement conduct, the exclusionary rule is less likely to be applied. The good faith exception, the rule of inevitable discovery, the rule of attenuation, and the independent source rule are examples of situations where police conduct would not have been altered and, for that reason, the exclusionary rule is generally not applied so as to exclude evidence from trial.
Exclusion of Illegally Seized Evidence
MAPP v. OHIO, Supreme Court of the United States (1961), 367 U.S. 643, 81 S.Ct. 1684
FACTS:
The appellant, Dollree Mapp was convicted of knowingly having in her possession and under her control some lewd and lascivious books, pictures, and photographs in violation of an Ohio statute. The evidence, which aided in her conviction, was taken by police officers, and as the Ohio Supreme Court admitted, was secured during the execution of an illegal search and seizure.
Appellant Mapp lived alone with her fifteen-year-old daughter in a second floor apartment in Cleveland. In the early afternoon of May 23, 1957, three policemen arrived at the home, rang the doorbell, and were asked the purpose of their visit. The police officers stated that they wanted to talk to her and that they would not disclose to her the topic of their inquiry while they remained on the street. In reality, the police had information that a person who had been involved in a recent bombing was present in the home and that there was a large amount of gambling paraphernalia stored within.
Upon consultation with an attorney Ms. Mapp informed the police that she would admit them only if they produced a search warrant. The officers did not force an entry, but kept the home under observation for the next three hours.
Later, with the addition of several more officers, the police attempted and effectuated an entry by breaking the glass to a rear door. When the appellant asked to see a search warrant, an officer waved a piece of paper, purporting to be a search warrant. Ms. Mapp promptly grabbed the paper and placed it to her bosom for safekeeping. The officers, after a brief physical struggle, retrieved it, handcuffed her, and took her upstairs where she was forced to sit on her own bed. The arrival of Mapp's attorney did noting to aid the situation since the police would not allow him to enter the home.
The officers searched through her dresser, a chest of drawers, a closet, and other areas of the bedroom. A photo album and personal papers were also searched. The search continued through the rest of the second floor, including the other bedroom, the kitchen, and dinette. A search of the basement revealed a trunk which contained the obscene materials upon which this conviction rested.
At Ms. Mapp's trial, the prosecution introduced no evidence of a search warrant and the judge permitted the introduction of the evidence secured by the search. Ms. Mapp was convicted by virtue of the evidence seized from her home.
The Ohio Supreme Court affirmed the conviction with the rationale that the evidence had not been taken from her person by the use of brutal or offensive physical force sufficient to offend a sense of justice.
PROCEDURAL QUESTION:
Should the Exclusionary Rule of Weeks v. United States be extended so as to exclude illegally seized evidence from use to prove guilt in state criminal trials?
HELD: Yes.
RATIONALE:
Mr. Justice CLARK delivered the opinion of the Court.
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[I]n Weeks v. United States, (1914) 232 U.S. 383, at pages 391-392, 34 S.Ct. 341, at page 344, 58 L.Ed. 652, [the Court] stated that:
"The Fourth Amendment . . . put the courts of the United States and Federal officials, in the exercise of their power and authority, under limitations and restrains [and] . . . forever secure[d] the people, their persons, houses, papers, and effects, against all unreasonable searches and seizures under the guise of law . . . and the duty of giving to it force and effect is obligatory upon all entrusted under out Federal system with the enforcement of the laws."
Specifically dealing with the use of the evidence unconstitutionally seized, the Court concluded:
"If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution. . ."
Finally, the Court in that case clearly stated that the use of the seized evidence involved "a denial of the constitutional rights of the accused."
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This Court has ever since required of federal law officers a strict adherence to that command which this Court has held to be a clear, specific, and constitutionally required - even if judicially implied - deterrent safeguard without insistence upon which the Fourth Amendment would have been reduced to "a form of words." (Citations omitted.)
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In 1949, . . . this Court, in Wolf v. Colorado (citations omitted), . . . [considered] the effect of the Fourth Amendment upon the States through the operation of the Due Process Clause of the Fourteenth Amendment. It said:
"[W]e have no hesitation in saying that were a State affirmatively to sanction such police incursion to privacy it would run counter to the guaranty of the Fourteenth Amendment." (Citations omitted.)
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[The Supreme Court in Wolf declined to apply the Weeks Exclusionary Rule to state criminal prosecutions involving violation of Fourth Amendment principles.]
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The Court in Wolf first stated that "[t]he contrariety of views of the States" on the adoption of the exclusionary rule of Weeks was "particularly impressive" (citations omitted); and, in this connection, that it could not "brush aside the experience of the States which deem the incidence of such conduct by the police too slight to call for a deterrent remedy . . . by overriding the [States'] relevant rules of evidence." (Citations omitted.) . . . [P]rior to the Wolf case, almost two-thirds of the States were opposed to the use of the exclusionary rule, now despite the Wolf case, more than half of those since passing upon it . . . have . . . adopted or adhere to the Weeks rule. (Citations omitted.) Significantly, among those now following the rule is California, which, according to its highest court, was "compelled to reach that conclusion because other remedies have completely failed to secure compliance with the constitutional provision . . . ." People v. Cahan, 1955, 44 Cal.2d 434, 445, 282 P.2d 905, 911, 50 A.L.R.2d 513. In connection with this California case, we note that the second basis elaborated in Wolf in support of its failure to enforce the exclusionary rule against the States was that "other means of protection" have been afforded the right of privacy (partially protected by the Fourth and Fourteenth Amendments). 338 U.S., at page 30, 69 S.Ct. at page 1362. The experience of California that other remedies have been worthless and futile is buttressed by the experience of other States.
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Since the Fourth Amendment's right of privacy has been declared enforceable against the States through the Due Process Clause . . ., it is enforceable against them by the same sanction of exclusion as is used against the Federal Government. Were it otherwise, then just as without the Weeks rule the assurance against unreasonable federal searches and seizures would be a "form of words," valueless and undeserving of mention.
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There are those who say . . . that under the exclusionary doctrine "[t]he criminal is to go free because the constable has blundered." (Citations omitted.) In some cases this will undoubtedly be the result. (Footnote omitted.)
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The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the character of its own existence.
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Having once recognized that the right of privacy embodied in the Fourth Amendment is enforceable against the States, and that the right to be secure against rude invasions by state officers, is therefore, constitutional in origin, we can no longer permit that right to remain an empty promise.. . . [W]e can no longer permit it to be revocable at the whim of any police officer who, in the name of law enforcement itself, chooses to suspend its enjoyment. Our decision . . . gives to the individual no more than that which the Constitution guarantees him, to the police officer no less than that to which honest law enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true administration of justice.
The judgment of the Supreme Court of Ohio is reversed and the cause remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
Notes
1. Why did the Mapp Court suddenly discover that the Weeks rationale which it had earlier rejected in Wolf v. Colorado, 338 U.S. 25 (1949) and Rochin v. California, 342 U.S. 165 (1952), now should be applied to the states?
2. Does the Exclusionary Rule now apply with the same force and effect to the states as it had been applied to federal criminal prosecutions?
3. How does the Exclusionary Rule apply to the states since the Fourth Amendment only applies so as to limit the activities of the federal government? The Supreme Court adopted what some scholars call the "selective incorporation doctrine." Under this judicial theory various guarantees of the Bill of Rights which justices believe to be so fundamental to liberty that the Due Process Clause of the Fourteenth Amendment must include some of the guarantees within its purview. On a case by case basis, a particular right is "incorporated" into the Due Process Clause and thereafter, applies to limit state criminal procedural practice. In Mapp, the Court felt that alternative remedies to violations of the Fourth Amendment by state officials had not ensured respect for the Amendment so alternative methods of enforcement were required.
4. The Fourth Amendment and the Exclusionary rule generally have no application outside the territorial jurisdiction of the United States. The framers of the Fourth Amendment did not contemplate extending the protections of the amendment to other nations and especially to foreign citizens residing in their home nation or to their property. The Supreme Court held that a search of a Mexican national's home in Mexico by Drug Enforcement Agency agents [DEA] did not require a warrant from a United States court. The Court noted that a warrant from the United States would have no lawful effect in Mexico. While aliens do enjoy certain constitutional rights, those rights are not required to be applied in their own nation. In United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), the Court refused to suppress evidence seized in Mexico without a warrant because the history, text, and practice of the Fourth Amendment fail to indicate that extraterritorial coverage of the amendment was intended.
5. The Exclusionary Rule is to be applied in situations where the police have made a mistake in following the Fourth Amendment. The basic theory holds that if evidence illegally seized has little or no utility, in future cases, law enforcement officers will not violate the Fourth Amendment rights of individuals. What about a situation where the police committed no intentional wrong and, in objective good faith, followed the improper directives of a judicial official, but a Fourth Amendment violation occurred? If the thrust of the Exclusionary Rule is to deter police misconduct, and they followed what they believed to be the correct procedure, why should the evidence be excluded?
In two companion cases, Massachusetts v. Sheppard, 468 U.S. 981 (1984) and United States v. Leon, 468 U.S. 397 (1984), the officers acted in objective good faith in making searches and seizures, but the Fourth Amendment was still violated. In Sheppard, police used a warrant which was designed for a seizure of a controlled substance when the goal of the search involved homicide evidence rather than a seizure of drugs. Police alerted the judge to the problem and the judge said he would take care of the problem, but all errors were never corrected. he Court upheld the validity of the Sheppard warrant and the admissibility of the evidence since the officers did their best and could not be expected to challenge a judge when the judge said all problems with the warrant had been solved. Similarly, in Leon, the Court approved the use of evidence seized pursuant to an invalid warrant by officers who acted in good faith reliance on a bad search warrant. According to the Court the Exclusionary Rule is designed to deter police misconduct rather that address judicial error or misconduct; judges and magistrates do not appear to be attempting to subvert the Fourth Amendment; and the Court felt that exclusion would not deter judges in the future. Where the reason for the rule does not apply, the rule should not be employed.