Criminal Procedure: Investigation Outline

Outline
 
Chapter 1. The Exclusionary Sanction
 
I.              Adoption of the Federal Constitutional Exclusionary Sanction
a.    Mapp and the Fourth Amendment Exclusionary Rule
                          i.    Mapp v. OH
1.    Holding: All evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court.
2.    The court first stated in Weeks, in 1914, that “in a federal prosecution the 4th amendment barred the use of evidence secured through an illegal search and seizure.”
                         ii.    Potential Policy Justifications for Exclusionary Rule
1.    Deterrence: May prevent violations, either through deterrence or some sort of “educative” or socialization process.
2.    Judicial integrity:
a.    Clean judicial hands may be “good” in themselves.
b.    Preservation of judicial integrity may be useful to preserving ability of judiciary to function
3.    Remedial Purpose: May serve as appropriate remedy for wrong done, by putting the “victim” of an improper search back in the victim’s previous condition.
4.    Supreme Court’s Position on Policy: Exclusionary Rule’s deterrence function is the primary justification for Fourth Amendment exclusionary rule.
a.    Judicial integrity is a consideration, but only use of evidence that encourages future violations of Fourth Amendment rights intrudes upon this integrity.
b.    There is no legitimate remedial function; any remedial effect that the Fourth Amendment exclusionary rule serves is an incidental side effect of it.
                        iii.    “Costs” of the Exclusionary Rule
1.    Prosecution is deprived of the ability to use evidence that reliably shows a person’s guilt of a criminal offense.
2.    The rule requires that time and effort be spent on resolving often complicated issues in order to determine the admissibility of evidence; this may disrupt the trial process.
3.    Disregarding reliable evidence of defendants’ guilt may cause loss of public respect and support for courts.
                       iv.    Supreme Court’s Fourth Amendment Approach to Exclusionary Rule “Subissues”
1.    Specific sub-issues arising under the Fourth Amendment exclusionary rule are often resolved by imposing a balancing test that asks: Would the increase in deterrence that can be expected from the change (the “incremental deterrence”) justify the “cost,” with special emphasis on the increased loss of reliable evidence that would also result? [Scott] 2.    Examples:
a.    Whether rule should contain “standing” requirement?
b.    Whether rule should have “reasonable good faith exception” requirement?
b.    Although the Supreme Court has not specifically ruled on the issue, there is wide-spread consensus that a ∆ seeking to have evidence suppressed must prove:
                          i.    illegality sufficient to trigger the exclusionary sanction;
                         ii.    the ∆’s right to invoke that sanction (“standing”); and
                        iii.    that the challenged evidence was obtained as a factual result of the illegality (it was “fruit of the poisonous tree”).
                       iv.    Further, if the prosecution responds by relying on an “exception” to the general requirement of exclusion, the prosecution bears the burden of persuasion regarding the exception.
1.    The burden is not high: no greater burden than proof by a preponderance of the evidence.
c.    Other Potential Exclusionary Rules
                          i.    Whether any legal requirement other than the Fourth, Fifth, and Sixth Amendments should (or must) be accompanied by an exclusionary rule is a different matter, often constituting “only” a matter of state law.
1.    Any legislative body can enact statutes which contain an exclusionary rule to serve as a remedy for police violations of whatever criminal or civil prohibitions set out in the legislation.
                         ii.    In resolving these issues, Supreme Court’s conclusions adopted by the Court as a matter of Fourth Amendment “law” need not necessarily be followed by analogy.
II.            Scope of Exclusionary Sanctions: Standing, Fruit of the Poisonous Tree, Independent Source and Attenuation of Taint
a.    “Standing” To Invoke Exclusionary Rule
                          i.    Fourth Amendment “Standing” Rule: A criminal defendant is entitled to attack the “reasonableness” of a search or seizure only if the defendant shows that the search or seizure intruded upon the defendant’s own privacy interests. [Wong Sun v. United States] 1.    Whether this was so depends not upon a separate set of “standing” rules or cases but upon application of the case law defining scope of Fourth Amendment protection. [Rakas] a.    Personal constitutional rights are violated where the constitutional harm is done to that individually personally, at a place (e.g., her home), or to some thing (e.g., her car or backpack) where and when she possessed a “reasonable expectation of privacy.” [Rakas]                          ii.    Possible policy justification: Permitting defendants whose privacy was not violated by a search to challenge the admissibility of evidence would not provide sufficient incremental deterrence to justify the increased loss of reliable evidence of criminals’ guilt.
                        iii.    Examples:
1.    An individual does not have standing to complain about the constitutionality of the search of another person’s container.
2.    An individual also lacks standing, when a police officer illegally peeped through a gap in a closed window blind when the individual’s presence in that apartment was strictly as part of a commercial transaction, not as a guest or invitee.
3.    An individual does have standing, however, to challenge the constitutionality of a search of an apartment where he was present as an “overnight guest.”
b.    “Fruit of the Poisonous Tree” (FOPT) and the Fourth Amendment Exclusionary Rule
                          i.    AKA, derivative evidence rule.
                         ii.    General Rule: All evidence obtained or discovered as a “factual result” of a violation of a defendant’s Fourth Amendment rights is “fruit” of the “poisonous tree” and is inadmissible. [Wong Sun] 1.    In order for the ∆ to invoke the FOPT doctrine, the issues are:
a.    Does the ∆ have standing to challenge the original violation;
b.    Did the original police activity violate her rights; and
c.    Was the evidence sought to be admitted against her obtained as a result of the original violation.
2.    Evidence obtained by officers before a defendant’s Fourth Amendment rights were violated cannot have been discovered as a result of that later violation and therefore it is not excludable. [Wong Sun] 3.    Factual causation is established if the defendant shows only that officers were motivated by the results of an unreasonable search or seizure to take action, even if that action is supportable on other grounds. [Murray] 4.    Further limits may be imposed in specific situations: if officers improperly enter home without warrant to arrest suspect, but had general probably cause for his arrest, suspect’s later confession at the station house cannot be the “fruit” of that unreasonable entry if the confession is made after the suspect is removed from the home. [New York v. Harris] 5.    The burden of proving that evidence is not the FOTP is on the prosecution. To do so, the prosecution must establish that
a.    The evidence was obtained from a source independent of the primary illegality;
b.    The evidence inevitably would have been discovered in the course of the investigation; or
c.    The connection between the challenged evidence and the illegal conduct is so attenuated that it dissipated the taint of the illegal action.
                        iii.    Jurisdiction Over Person Never “Fruit”
1.    General rule: The Mapp rule is an evidentiary rule only, and therefore a trial court’s jurisdiction over a defendant arrested in violation of the Fourth Amendment is not a challengable “fruit” of the violation of the defendant’s Fourth Amendment rights.
2.    Possible Argument: In at least some situations, the manner in which a court system obtained jurisdiction over a defendant may be so offensive as to raise a due process prohibition against conviction. [Rochin]                        iv.    FOTP and Miranda
1.    Plurality of Court refused to suppress physical evidence (a gun) that was located as a result of the suspect’s unwarned but voluntary statement. [Patane].
a.    Nontestimonial physical fruits does not run the risk of admitting into trial an accused’s coerced incriminating statements against himself.
c.    “Independent Source”
                          i.    General Rule: Evidence obtained by law enforcement is admissible despite the officers’ violation of the defendant’s Fourth Amendment rights if that evidence has a “source” that is “independent” of the violation.
                         ii.    Issue: Is this conceptually an “exception,” or it is simply a label that reflects the absence of proof that the challenged evidence is the “fruit” of the proven violation of the defendant’s rights?
                        iii.    *** The case law leaves unclear whether independent source is an exception, as set out here, or rather simply reflects the defendant’s failure to establish factual causation between the Fourth Amendment violation and law enforcement discovery of the challenged evidence.
III.           “Exceptions” to Exclusionary Requirement
a.    Attenuation of the Taint
                          i.    General Rule: The links between the primarily illegality and the obtaining of the challenged evidence may be such that the taint of the illegality is “attenuated.” Where attenuation is shown, the challenged evidence is admissible. [Wong Sun]                          ii.    Factors Relevant to Determining if Taint Attenuated
1.    Time Factor: The longer the time period between the initial illegality and the discovery of the challenged evidence, the more likely attenuation is to be found.
2.    Intervening Circumstances: The more “intervening circumstances” that interject themselves between the illegality and the obtaining of the evidence, and the more significant those circumstances, the more likely attenuation is to be found.
a.    If one of the intervening circumstances is a “voluntary” decision by someone, attenuation is more likely to be found. The more “voluntary” that decision was, the more likely it is that the decision will lead to attenuation of the taint.
b.    If one of the intervening circumstances refers back to (and thus in a sense “reinvigorates”) the original illegality, attenuation is less likely to be found.
c.    Issue: Should the fact that one of the intervening events was a “judicial one ” (issuance of a warrant, post-arrest appearance) argue in favor of attenuation?
3.    Flagrancy of Violation: The less flagrant the violation of the Fourth Amendment constituting the original illegality, the more likely attenuation is to be found.
4.    Officer’s Purpose: If the purpose of the violation of the Fourth Amendment was to obtain evidence of the very sort at issue in the case, the taint is less likely to be attenuated.
5.    Nature of Challenged Evidence: If the challenged evidence consists of the testimony of a witness rather than physical evidence, attenuation is more likely to be found. [Ceccolini]                         iii.    Attenuation is so flexible that it can be frequently used by prosecution can rarely be seen as frivolous.
b.    Intervening Criminal Conduct by Suspect
                          i.    Some courts treat illegal conduct by the suspect as automatically breaking the chain of “causation,” so that evidence of such illegal conduct cannot be excludable “fruit” of officers’ unconstitutional activity.
                         ii.    Some courts apply attenuation of taint analysis to these situations, and regard a showing that one link in the chain is such illegal conduct as strongly suggesting that the taint became attenuated and evidence of that illegal conduct is thus admissible.
c.    “Good Faith” Basis for Belief in Constitutionality of Action
                          i.    Police Action Pursuant to Search Warrants
1.    General Rule: Evidence obtained by an officer acting pursuant to a search warrant and within its scope is admissible despite defects in the search warrant if a reasonable officer would have believed in “good faith” that the warrant was valid and authorized the actions. [Leon; Sheppard] a.    Objective Test
2.    Rationale: This is the case because the standard is one of a reasonable officer. If that officer has acted within the boundaries of a reasonable officer, further encouragement is not needed.
a.    Appropriate to give officers the benefit of relaxed standards where they sought a warrant rather than proceeding under what they believe to be a reasonable Fourth Amendment search.
                                                          i.    Makes sense because it subjects the officer’s judgment to a neutral magistrate’s judgment. Insulates officer’s mistakes.
3.    When Good Faith Exception is Inapplicable: Evidence must be excluded if-
a.    officer, with sufficiently wrongful “intent,” misrepresented facts in applying for warrant; or
b.    issuing magistrate abandoned “judicial role” in process; or
c.    warrant was so obviously defective that “reasonable” officer would have been aware of defect.
                         ii.    Police Action Authorized by Invalid Statute: Evidence obtained in a warrantless search is admiss