Exclusionary Rule
exclusionary rule- if evidence is seized unlawfully in violation of the 4th amendment that the prosecution cannot use the evidence at trial in federal or state courts.
Interests that support the exclusionary rules- policies that support the ER
i. disincentive for police officers to search illegally in the future (if you search that evidence illegally you can’t use it anyway)
1. forward looking
2. officers only care about ferreting out crime
ii. 4th amend protects privacy not the exclusionary rule- your privacy is already invaded with the exclusionary rule- they already entered your house
exclusionary rule is not an individual protection it’s a societal protection
i. individual protected by 4th amend
ii. not meant to help the person whose evidence was seized
iii. protects society in the future
iv. keep courts from being tainted
good faith exception to exclusionary rule- where the police obtain a warrant and then its determined that the search violated the 4th amend (lacks PC or no particularity), if the govt can show that the police acted in reasonable good faith reliance of the warrant then it does not violate the exclusionary rule (evidence comes in).
i. clerical error- good faith exception applies and the exclusionary rule will not be applied
ii. 1 factor cts look at to determine if there is good faith
1. did the judge know about, let the officer know he knows about it, and assure the officer that the error does not make a difference
iii. if officer acts on a statute, even if statute is later found to violate 4th amend – exclusionary rule is not applied
1. no deterrent effect of doing that- don’t want to deter an officer for following statute
Exclusionary Rule not applied
i. does apply in non-criminal trials – not before at grand jury or after at sentencing
1. not a deterrent b/c officers don’t care about the grand jury or sentencing
2. officers are concerned with having the evidence used at trial – officers only care about conviction
ii. exclusionary rule does not apply at parole revocation hearing
iii. exclusionary rule not used in civil deportation hearing
iv. exclsuinary rule does not apply is clerk makes mistake
1. clerk (employee) who works for police has no interest in ferreting out crime
2. no benefit for excluding evidence
v. exclusionary rule does not apply where police violate the knock and announce rule
1. reasons: if police wait to long evidence will be destroyed and will be unsafe for police
2. little deterrent factor b/c police have valid warrant and reason to search premises
Exclusionary Rule applied
i. evidence is admissible if person who seized the evidence is not agent of the govt
1. but police can not ask private person to do a search
2. then private person becomes an agent of the govt
ii. exclusionary rule applies to forfeiture proceedings
Fourth Amendment
4th amend guarantee the right to be free from illegal search and seizure
4th amend applies to the states
4th Amend Analysis:
i. 1) is there a search or seizure? if yes to either:
1. if not 4th amend does not apply
ii. 2 )do they have probable cause or a probable cause substitute? AND
iii. 3) Do they have a warrant or a warrant exception?
iv. 4) Should we apply the exclusionary rule?
1. if lack 2 or 3 then look is exclusionary rule should apply- if meet 2 or 3 then search was good and exclusionary rule does not apply
4th amend protects people not places
A search occurs when the govt intrudes into an area in which we have a reasonable expectation of privacy
i. expectation of privacy – subjective and objective (reasonable person) components
1. Phone Call- expectation of privacy
a. unless person on the other end lets someone listen in then there is no longer a reasonable expectation of privacy
i. both people co-own the conversation (either of them can give up the conversation to someone else)
ii. when you make an illegal call you are assuming the risk that the other person will reveal the call to someone else
iii. either party can give up the reasonable expectation of privacy – no longer a search
2. Trash- no reasonable expectation of privacy in trash
3. Abandonment Doctrine-for abandonment to occur you need to intend to get rid of something (volition- intent)
a. if you abandon something its no longer a search – have to get rid of something and intend to get rid of it
b. can’t be coerced by police activity
4. Open field- on an open field you do not have a reasonable expectation of privacy
5. Home- you do have an expectation of privacy
6. Curtiledge (structure not the house)- do have an expectation of privacy
a. factors to consider if it is curilage
i. how close it is to home
ii. is in enclosed (fence)
iii. nature to what area is used for
iv. steps taken to protect from observation
7. if people can fly over legally and observe things then there is no expectation of privacy
a. aerial photography is not a search
i. no intimate details reveled in photos – industrial plant not a home – so still care about intimate details
8. Jail cells- no expectation of privacy
9. Luggage- expectation of privacy in luggage is not the same as (less than) expectation of privacy in home
a. drug sniffing luggage- contents of luggage are not revealed therefore drug sniffing dog does not constitute a search
10. Street- have no expectation of privacy n the street- have to expect people can see you
ii. Search
1. Car VIN- not a search
2. if you pick up a bag not a search unless you performing an exploratory search
3. thermal imaging is a search
4. look at how sophisticated is the technology?—if technology is available to everyone in the public then you can expect police to use it and it can be used
a. anything that goes on inside a house is protected – intimate details or not
b. highly sophisticated technology not available to the public
c. doesn’t matter if there is intimate details if you intrude into something that you have a reasonable expectation of privacy it’s a search
d. Factors ct looks at : how sophisticated is technology, how readily available is it and the location (house or not)
5. dog sniffing not a search
a.
determine if probable cause existed when the judge issued the warrant
a. was the evidence in the 4 corners of the affidavit sufficient enough to give PC
b. what’s in the affidavit does not have to be true- just has to be sufficient (reliability and basis of knowledge) to issue a warrant.
c. Exception:
i. if police lied, knew informant was lying or acted recklessly in the warrant then it is void
vii. police do not need to give identity of informant if trial judge is convince that officers relied in good faith on info supplied by a reliable informant
viii. Anticipatory warrant- if at the time the warrant was issued there is probable cause that an event will take place then a warrant can be issued.
1. its ok to issue a warrant today for a search tomorrow, even though today there are no drugs
ix. Drugs in a car- PC if given the amount of money and the drugs it suggests these people were involved in a common enterprise- selling drugs
1. police can then arrest anyone in the car
2. look at totality of circumstance
Warrants
i. Intro
1. attorney general cannot issue warrant, only a magistrate can
2. can’t pay someone to issue a warrant
3. judge actually has to read a warrant before they sign it
ii. is it drafted ok
1. needs an affidavit showing PC
2. and particularity requirements
iii. Warrant needs to describe certain – place to be search and item to be seized in the warrant
1. does warrant describe place sufficiently? – then look to see if officer can reasonably execute the warrant on the right apt.
2. if they had good reason to go in a place (even though it’s the wrong place) anything they find in plain view is admissible
3. need particularity of place and particularity of items
4. particularity of item to be seized factors:
a. need more then just tv- need to say sony tv or even have the serial numbers
b. but on the other hand stolen manure is as specific as you can get
c. if the item is contraband the police can get away with less specificity
d. if items have 1st amend protection then police have to be very specific
iv. police have to execute the warrant reasonably
1. they have to be reasonable in searching the right place
v. can only look in places where the items of the target of the search are located
1. must stop search when they find it
vi. Knock and announce- don’t have to knock and announce:
1. if police are in danger
2. if drugs are going to be destroyed
vii. If someone is not named in the warrant-
1. Police have a warrant to search a bar
