Criminal Procedure
Professor Uphoff
Fall 2014
Introduction to the Exclusionary Rule
I. Exclusionary Rule
A. Generally
1. There are four different exclusionary rules
a. One for the fourth amendment
b. And another for Miranda under the fifth amendment
(i) The exclusionary rule is much stronger in the case of a Miranda violation.
c. Due process violations
d. Sixth amendment right to counsel violations
2. Courts are uncomfortable with the exclusionary rule because it leads to the exclusion of highly relevant evidence and often sees criminal escape conviction.
a. The exclusionary only helps the guilty (after all if someone is innocent, the search won’t reveal incriminating evidence).
B. Rationales
1. Deter violations of constitutional guarantees by removing the incentive to disregard them
2. Admitting evidence seized in violation of the fourth amendment taints the judicial process
3. State and federal symmetry
C. History
1. Weeks v. United States (1914): The Police searched Weeks home without a warrant when he wasn’t home. Weeks filed a timely motion for return of his property that was denied.[1]
a. HELD: the court held that the fourth amendment required that the evidence be excluded
(i) Without the exclusionary rule, the fourth amendment would be toothless.
(ii) The right to have illegally seized evidence is implicit in the fourth amendment.
(iii) At this time, the court had not incorporated the fourth amendment against the states.
b. Other Potential remedies for fourth amendment violations
(i) Civil actions for money damages against police
(ii) Prosecution against the police.
2. Mapp v. Ohio (1961) (applying exclusionary rule to the states)
a. Before this the court had not applied the exclusionary rule to the states. See Wolf v. Colorado.
(i) Under Wolf, federal agents could ask state police to conduct an illegal search and then turn the evidence over to the feds and it would not be excluded in federal court.
(ii) Held: the court applied the exclusionary rule to the states because they felt it was necessary to give the fourth amendment teeth.
3. Additional Developments:
a. Herring v. United States (2009)
(i) Herring test: To trigger exclusionary rule, police conduct must be sufficiently deliberate that the exclusion can meaningfully deter it (in the future) and sufficiently culpable that deterrence is worth the price paid by the justice system.
(A) This essentially means that only egregious police ocnduct will trigger the exclusionary rule
b. Bryer in Davis v. United States (2011).
(i) The court would place determinative weight upon the culpability of an individual officer’s conduct and would only apply the rule where a violation was deliberate, reckless, or grossly negligent, then the good faith exception will swallow the exclusionary rule. This will water down the exclusionary rule and weaken fourth amendment protections.
4. Bottom Line
a. Today the exclusionary rule is quite week in the fourth amendment context, and court’s will generally apply a balancing test.
D. Exceptions (to be discussed in Detail later
1. Independent Source Doctrine: the evidence was discovered in art by an independent source unrelated to the tainted evidence
2. Inevitable discovery rule: the evidence would have been inevitably discovered through lawful means
3. Attenuation Doctrine:
4. Good Faith Exception:
Threshold of the Fourth Amendment
I. WHAT IS A SEARCH?
A. Generally
1. The fourth Amendment protects “people not places.” See e.g., Katz v. United States.
(i) But it protects people more in some places than others
b. Before Katz the Court had applied a “trespass” analysis.
(i) Under the old approach the fourth amendment did not apply if the there was no physical intrusion into a “constitutionally protected area.”
c. Rule: A search is valid unless there is a legitimate expectation of privacy or physical trespass upon a defendant’s property.
(i) This is about unreasonable searches. Obviously the police can do those things if they have a warrant
B. The Katz Reasonable Expectations “test”
1. The Decision: recording a person’s conversation in a phone booth violated the fourth amendment.
2. The Test[2]:
a. The fourth amendment applies when
(i) (1) A person has an actual, subjective expectation of privacy and
(ii) (2) that expectation of privacy is that our society is prepared to recognize as objectively reasonable.
b. Knowingly exposes to the public vs. seeks to preserve as private: The
(i) The General Rule is that what a person knowingly exposes to the public is not the subject of fourth protection
(A) EX 1: Visual observation of a person in a phone booth would not violate the fourth amendment, but the use of electronic bugging would because paying the toll and closing the door to the both manifested a reasonable expectation that a conversation would not be heard.
(B) EX 2: Katz would not have had an objectively reasonable expectation of privacy if he had spoken on a crowded sidewalk because anyone nearby could have overheard him.
(C) EX 3: Person has no reasonable expectation of privacy in garbage set outside for pickup. California v. Greenwood.
C. “False Friends”
1. Two Kinds of Situations:
a. Where an undercover police officer or informant tries to gain a person’s confidence so that they will elicit information that the police can then
b. Where the police or an informant try to elicit information
II. WHEN ARE GOVERNMENTAL INTRUSIONS SEARCHES
A. Three General Factors
1. The site or nature or nature of the property being inspected
a. E.g., there is greater protection in the home than in the curtilage
2. The extent to which a person has taken steps to keep the information, his property, or an activity private.
3. The degree of the intrusion experienced
B. “False Friends”
1. THE RULE: The fact that a false friend is wired with a transmitter is irrelevant to the search analysis
2. Two Kinds of Situations:
a. Where an undercover police officer or informant tries to gain a person’s confidence so that they will elicit information that the police can then
b. Where the police or an info
ment
(A) In this case the court eschewed a
III. STANDING:
A. Generally
1. Standing is a threshold issue. If a court finds that a person doesn’t have standing to challenge a search, then they do not even reach the issue of whether or not the search violated the fourth amendment
a. In order for a victim to have standing to invoke the exclusionary rule, the search must have violated their fourth amendment rights (i.e, the person must have been the victim of the search).
(i) This applies even if you were the target of the search.
b. In order to have standing, a person must have a reasonable expectation of privacy.
B. Standing Continuum: From most to least
1. Owner/resident/tenant (i.e., primary residents)
a. This can also apply to someone who has been put in the homeowner’s shoes (E.g,, house sitter, babysitter).
b. EX: a husband would have standing to challenge a search of his wife’s car, even if he did co-own it. He has a reasonable expectation
2. Overnight guests
a. A cousin staying at his cousin’s house over the holidays would have standing to challenge a search of the bedroom
3. “almost all social” guest (Minnesota v. Carter).
4. Drug dealers/criminals/those with fleeting & insubstantial connections
C. Examples
1. Minnesota v. Olson (warrantless, non-consensual entry and arrest of overnight guest)
a. Person had standing because society recognizes an overnight guest’s reasonable expectation of privacy
2. Rawlings v. Kentucky
a. Person did not have standing to challenge search of another person’s purse that contained their property, because they had no reasonable expectation of privacy at the time of the search.
(i) BUT, a person has standing to challenge a seizure of their property, even if they can’t challenge the search itself.
D. Rakas v. Illinois (1978) (standing for car passengers)
1. Defendant’s challenged the search of a car they were passengers in, but did not own, bu the owner was driving
a. Defendant’s lacked standing to challenge the search because they lacked a property interest in the car and did not have a possessory interest in the items seized. Therefore they lacked a reasonable expectation of privacy
b. The driver could have challenged the search
2. In this case, the court rejected the “legitimately on the premises analysis” and used a traditional “reasonable expectations” test.
[1] This was a key factor the court relied on.
[2] The test comes from Justice Harlan’s Concurrence, not the majority opinion.
[3] This is complete bullshit
