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Exclusionary Rule Part I (podcast transcript)

Miller:    Jenna, let’s review our 4th Amendment road map.  We first discussed the triggers for a 4th Amendment search.  There are two; both triggers must be hit.  There must be a government intrusion and secondly that intrusion must be into a place where someone has a reasonable expectation of privacy.  Once triggered, the 4th Amendment requires …??

Solari: That the search be reasonable; and, to be reasonable the courts are generally going to require two things.  First the government must establish probable cause that the REP area contains evidence of a crime.  Second, the government must usually bring that probable cause to a judge and get judicial permission to enter that REP area.  That judicial permission of course is a warrant particularly describing the place to be searched and the things to be seized.

Miller:    And once we’ve got a warrant; however, the search must still be executed reasonably.  We should knock, announce our identity, authority and purpose and wait a reasonable time for the occupants to answer.

Solari:    And of course the operative word in any 4th Amendment search is reasonable.  So we don’t have to knock and announce if we can articulate facts which would justify not doing so. 

Miller:    We can search the place authorized in the warrant - the house, for example.  Our search must be limited to those places in the house where the items to be seized might be located.  If we’re looking for a stolen 24 inch TV, we have no business looking into the medicine cabinet.

Solari:    Right.  And when searching for contraband we can also detain people who are substantially connected to the premises.  People substantially connected to the premises are the residents of the premises, the people living there, and the overnight guest.  Other people can be detained under a Terry Stop rational which is reasonable suspicion they are participating in a crime.  They can be frisked too if there is reasonable suspicion that those people are presently armed and dangerous.

Miller:    And if we have probable cause supporting a warrant and the warrant is executed reasonably, the 4th Amendment is satisfied and the evidence shouldn’t be suppressed under the Exclusionary Rule.  But if we do not have probable cause supporting a warrant, we as government agents need to establish for the court a reasonable basis for not doing so.  Now we discussed several exceptions to the probable cause and warrant requirement.  Let’s review some of the big ones.

Solari:    Alright, well a Terry Frisk is a search for weapons.  It’s based on less than probable cause.  It’s based on reasonable suspicion that the suspect is presently armed and dangerous.  A Terry Stop and a Terry Frisk, importantly, are two separate things.  Each must be justified.  First, officers can stop a suspect with reasonable suspicion that criminal activity is a foot.  With reasonable suspicion that the subject is presently armed and dangerous, the officer can also conduct a frisk of the suspect for weapons.

Miller:    A Search Incident to Arrest is an exception to the probable cause requirement.  Of course officers need probable cause for the arrest; however, they do not need probable cause for the search that’s incident to that arrest.  Before taking the suspect into custody, officers may search the suspect’s persons and areas within his immediate control.  Officers may search for weapons, means of escape, and evidence.

Solari:    Consent is another exception to the probable cause and the warrant requirement.  Officers don’t need probable cause to search a place with lawful consent.  To be lawful though the consent must be voluntary and given by someone with either actual or apparent authority over the place to be searched.

Miller:    The last exception I think we’ve got time to review is the Mobile Conveyance exception to the warrant requirement.  This exceptions states that a car may be searched without a warrant if it’s in a public place, appears readily mobile, and there’s probable cause to believe it contains evidence of a crime. 


Now, Jenna - what happens under these circumstances?  The 4th Amendment’s triggered, meaning there’s a government intrusion into a REP area.  Second, the government agents do not have probable cause or a warrant.  Finally, the agents cannot establish a reasonable exception to the probable cause and warrant requirement.

Solari:    Well, the last ditch effort to save that evidence is going to be to try to get the judge to find an exception to the Exclusionary Rule.  Now the Exclusionary Rule is a judicially created remedy that excludes evidence that’s been collected by law enforcement officers when the officers violated the Constitution.

Miller:    Where do we find the Exclusionary Rule?

Solari:    Well you won’t find it actually written anywhere in the Constitution.  It’s a judicially created remedy that was created by the Supreme Court.

Miller:    What’s the purpose of the Exclusionary Rule?

Solari:    It’s designed to deter police from violating certain constitutional rights.   The theory behind the rule is that police officers won’t violate the Constitution during their investigations if they know the evidence will be suppressed.

Miller:    Does the Exclusionary Rule apply every time there’s a constitutional violation?

Solari:    No it’s a pretty severe remedy.  So suppression of evidence has always been a last resort.  The Exclusionary Rule generates a lot of societal cost, to include keeping evidence out of court and thereby allowing the guilty to sometimes go free.  So before excluding the evidence from trial, the court is going to first require a “but-for” connection between the constitutional violation and the evidence.  That means “but-for” the constitutional violation, the government wouldn’t have discovered the evidence.  So an example might be where the police who don’t have probable cause or a warrant search a house and find evidence. 

There has to also be a close fit between the constitutional violation and the evidence.  Obviously a close connection exists in the example I just gave you.  However, in some cases there might be a question whether the government obtained the evidence by exploiting the constitutional violation or by some other means that’s sufficiently distinguishable so the evidence can’t really be said to be a direct result of the government’s illegal act.  If we can put some distance between the evidence and the constitutional violation or show that we would have found the evidence in spite of the violation we purge the taint.  If we can purge the taint, we won’t lose the evidence under the exclusionary rule.

Miller:    I can understand the close fit between the unreasonable warrantless search you just described and the evidence.  Do you have an example of a case where the evidence was purged of the constitutional taint?

Solari:    Yeah.  Hudson v. Michigan is a Supreme Court case decided last year in 2006.  In that case police officers had a proper search warrant; however, they executed it improperly or unreasonably.  They knocked and announced as required by the statute, but they didn’t wait that reasonable amount of time before they forcible entered the house.  In other words, the police violated the knock and announce rule.  When the police entered the house they found large quantities of drugs and a gun.  The officers’ seized the evidence and then they used it against the defendant at trial.

Miller:    Now I recall us discussing Knock and Announce.  I believe we mentioned the Supreme Court has said that knock and announce is a 4th Amendment requirement.  In Hudson, the police violated that Constitutional requirement correct?

Solari:    Right; however, the court held that the constitutional violation didn’t directly lead to the discovery of the evidence.  The officers were still going to execute the warrant and discover the gun and the drugs, whether they waited three seconds or 20 seconds to go inside the house.  Second, the court looked at the purpose of Knock and Announce.  Knock and Announce is designed to reduce violence and protect property from unnecessary destruction.  What Knock and Announce has never protected is somebody’s interest in preventing the government from seizing evidence.  Since the interest that was violated in Hudson had nothing to do with the seizure of the evidence, the court held that the Exclusionary Rule was not the proper remedy.

Miller:    Let me ask you this - could officers still be sued for violating the Knock and Announce requirement?

Solari    Absolutely.  It is a Constitutional requirement and the officers who willfully or recklessly violated the Constitution can face civil suits and even criminal prosecution.

Miller:    Why would the Supreme Court allow an Exclusionary Rule exception?

Solari:    Well the exception to the Exclusionary Rule applies when it doesn’t make sense to apply the Exclusionary Rule.  There are several exceptions to the rule, so maybe talking about them will illustrate what I mean.  One Exclusionary Rule exception is that the defendant has no standing to object.  When we were discussing reasonable expectation of privacy, we talked about people who do have REP inside of a house and therefore, have standing to object to an unreasonable intrusion.  You remember that?

Miller:    Yeah and these people, the people who have REP are the people living there and the overnight guest.

Solari:    Right, so if police officers’ bust into your house without probable cause supporting a warrant or a reasonable exception to the warrant requirement you would have standing to object to that.  The police intruded into your REP.  People living with you also have standing to object and your overnight guest have standing to object also.  If the police find a kilo of cocaine on your coffee table and you’re charged with illegal possession of cocaine, you can move to suppress that evidence at your trial because the police invaded your REP area in violation of the 4th Amendment.  The other people who live there and the overnight guest could also move to suppress the evidence at their trials if they were charged with possession.

Miller:    Now we also agreed, however, that a commercial visitor like a paperboy would not have a reasonable expectation of privacy inside my house.  Remember that?

Solari:    That’s right.

Miller:    So, if the commercial visitor was a drug dealer who delivered the kilo of cocaine to my house - in the example that we just talked about - and put that kilo of cocaine on the coffee table, would that drug distributor have standing to object to the unreasonable search of my home?

Solari:    No.  Based on the facts you just gave me, the drug dealer has no REP inside your house.  He just came to your house to sell the dope.  The police haven’t violated that commercial visitor’s REP.  That visitor has no standing to object to the Constitutional violations and since none of his rights were violated, the court will not suppress the evidence under the 4th Amendment at the visitor’s trial.

Miller:    Based upon what your saying, there’s some officers out there that might assume that it’s okay to violate the 4th Amendment rights of someone, so long as they don’t violate the suspect’s rights.

Solari:    That’d be a pretty costly and dangerous assumption for a police officer to make.  I mean let’s think it through.  In the situation we just discussed, the cocaine would be admissible in the commercial visitor’s trial because he has no REP in your house and no standing to object to that intrusion.  The cocaine would be inadmissible in your case though, so that’s one cost to the violation.  Also, you could sue the police officers in their personal capacities.  They violated your constitutional rights and they may or may not get qualified immunity.  Finally 18 U.S.C. §242 makes it a felony to willfully violate a persons constitutional rights.

Miller:    Okay let’s take a break and when we come back we’ll talk about the remaining Exclusionary Rule exceptions; but, remind me of our podcast website again.

Solari:    Okay well you can find Part II about our discussion on Exclusionary Rule exceptions and the remainder 4th Amendment podcasts at www.fletc.gov/training/programs/legal-division/podcasts.

Miller:    Okay thanks Jenna