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Exclusionary Rule Part II (podcast transcript)

Miller:    Jenna, what’s another Exclusionary Rule exception that we need to talk about?

Solari:    Well Tim, I think we ought to talk about the Inevitable Discovery Doctrine and its close cousin the Independence Source Doctrine.

Miller:    Let’s talk about inevitable discovery, first.

Solari:    Sure.  The gist of inevitable discovery is this; it doesn’t make sense to apply the Exclusionary Rule if the evidence would have inevitably been discovered by another lawful means.  The Inevitable Discovery Doctrine’s usually applied when the evidence that was illegally obtained is a weapon or a body.  For example, suppose a police officer intrudes into a murder suspect’s house, without a warrant or a reasonable exception to the warrant requirement.  Let’s assume that once he’s inside the house the officer sees a photograph of the victim’s body.  Apparently the murder suspect took a picture of the body after the murder intending to keep the picture as some type of trophy.  Something in that photograph catches the officer’s attention; he recognizes the murder scene, the place where the picture was taken.  With that information the officer drives to the scene and actually finds the victim’s body.  Now think what’s going to happen at trial when the government tries to introduce the evidence in this case.  First, what do you thinks going to happen to the photograph found inside the suspect’s house, which was searched without a warrant and without probable cause?

Miller:    Well the photograph was obtained without probable cause supporting a warrant or a reasonable exception.  It sounds like it’s probably going to be inadmissible under the Exclusionary Rule.

Solari:    I think you’re probable right.  What about the victim’s body?  Do you think that’s coming into evidence?

Miller:    Now this is my thought process, the victim’s body is probably inadmissible too.  The officer would not have found the body without the illegally seized photograph.

Solari:    Right and the body is said to be a fruit of the poisonous tree.  But now here’s how inevitable discovery might save the day.  Suppose at the time the police are conducting the unreasonable search and seizure of the house, a search party is already scheduled, or is in the process of searching, the area where the victim’s body’s located.  If they find it, do you see why it wouldn’t make sense to exclude the body?

Miller:    Yeah, I think so.  The evidence would have been inevitably discovered by the independent search party.

Solari:    Right and that it’s an independent search party is important.  Of course the party can’t be basing their search on any illegally obtained evidence.
Miller:    Now, do the courts require that an active investigation be in place at the time of the constitutional violation?

Solari:    Some do.  The courts are split on this.  Some courts require that when the officers are engaging in the unlawful search, another officer has to have already set in motion an independent and lawful inquiry that would have led to the discovery of the evidence.  So in the example that we just talked about, some courts would require that the independent search of the area already be under way when the officer unlawfully finds the picture.  Other courts would only require evidence that the search would have taken place in that area regardless of the officer’s unlawful discovery of the photo.     

Miller:    The photograph of the body is inadmissible though correct?

Solari:    Right, unless the government can somehow save it under an Exclusionary Rule exception.  Now the Independent Source Doctrine might do it.  Let’s suppose at the same time that officer was committing that unreasonable search of the murder suspect’s house another officer across town was in a federal magistrate’s office with a proper search warrant application.  Search warrant application establishes probable cause that evidence of the murder is located in the suspect’s house.

Miller:    I think I see where you’re going with this.  This sounds like an inevitable discovery; the evidence supporting probable cause for the search in the search warrant application must be lawfully acquired however, right?  It can’t be based on something the officer seized during the illegal search.

Solari:    That’s correct.  The Independent Source Doctrine applies when one officer’s illegally on the premises.  We have that here in our example.  The officer entered the murder suspect’s house without probable cause and a warrant, or a reasonable exception.  Second, the police must have in their possession probable cause to search the home at the time of the illegal entry.  The probable cause can’t be based on any evidence illegally discovered once inside the home.  It has to be gathered independent of the illegal entry and it has to exist at the time the officer illegally entered the premises.  Finally the government has to establish that the police would have applied for that warrant.

Miller:    I can understand why the Supreme Court would create the Exclusionary Rule in order to deter police misconduct for certain constitutional violations, but what happens if the defendant takes the stand and says something that’s inconsistent with the evidence that’s illegally obtained in his case?

Solari:    Well the Exclusionary Rule certainly isn’t a license to lie.  Prosecutors can use evidence obtained in violation of the 4th Amendment to impeach the in court testimony of a defendant.  Suppose we have a situation where police officers have violated the suspects 4th Amendment rights. The police unlawfully entered his home without a warrant or an exception to the warrant requirement, and found cocaine in his dresser drawer, his medicine cabinet, and his attic. That evidence is probably going to be suppressed. Would you agree?

Miller: Yes.  When you say suppressed, you mean the government can not charge the defendant with possessing the cocaine found in his house.

Solari: Right.  Since it has been suppressed, it doesn’t legally exist.  So, the government can’t talk about it in front of the jury during it case in chief. But here’s how the evidence might be resurrected and used to impeach the defendant. Suppose the government can charge the defendant with possessing other amounts of cocaine found in his car. Suppose the evidence in the car was lawfully seized. In this case the government can go forward with the prosecution. The government will present its evidence and try to establish the defendant knowingly and wrongfully possessed cocaine in his car. Now again, the government can’t mention the illegally seized evidence from the house - at least in its case and chief.  Once the government rests, it’s the defendant’s time to present evidence.

Miller: I think I know where you’re going with this. Now, suppose that after resting the defendant takes the stand, and he says all the dope in the car was my friend Bob’s. I’ve never seen cocaine before in my life.

Solari: Then the government can impeach the defendant with the illegally obtained evidence in the house - all the cocaine that was in his attic, his medicine cabinet, and everywhere else. The prosecutor’s going to ask on cross examination, “Now, you just testified you’ve never seen cocaine before.  What about all the cocaine we’ve found in your house?”

Miller: Can the government use this evidence to impeach other defense witnesses?

Solari: No.  The Supreme Court has limited the use of illegally seized evidence to  impeach the defendant, only.

Miller:    Any other Exclusionary Rule exceptions that we should talk about?

Solari:    One more.  It’s called the Good Faith exception.  Now evidence that’s obtained without probable cause, but in good faith reliance on a warrant issued by a neutral and detached magistrate will not be suppressed under the Exclusionary Rule.  Remember what the Exclusionary Rule is designed to do?

Miller:    Yeah.  Deter police misconduct.

Solari:    Right.  Where do police officers go to obtain a warrant? 

Miller:    Generally magistrates, or federal judges.

Solari:    Right.  Magistrates, however, like anybody can make mistakes about probable cause.  So, a defense counsel can make a motion to suppress the evidence in front of the District Court judge, alleging that the lower magistrate judge did not have probable cause to issue the warrant.  If the defense counsel is right and there’s not sufficient probable cause to justify the warrant, the District Court judge is not automatically required to suppress the evidence.  If the officer who executed the warrant relied in good faith on the warrant when it was issued and if the warrant was issued by a neutral and detached magistrate, that evidence is still going to be admissible.

Miller:    And that’s because the judge made the mistake and not the police, right?

Solari:    Right.

Miller:    Okay you said that good faith only applies when the judge is neutral and detached.

Solari:    That’s right.  The magistrate issuing the warrant has to be impartial for good faith to apply.  And if the officer knows that this is a magistrate who just rubber stamping warrants without really reviewing the facts or giving the facts any consideration good faith wouldn’t apply.  Importantly good faith also is not going to apply if the warrant is facially defective or obviously lacks probable cause.  If a reasonable police officer looking at the warrant should know just by looking at it that it’s defective or somehow lacks justification to support the search, the officer can’t claim to be relying on good faith on the warrant.

Miller:    You know this has kind of confused me, but what happens if the officer provides the magistrate with incorrect information in his probable cause affidavit?

Solari:    Well it depends.  Reasonable mistakes in the probable cause affidavit won’t make a search warrant unreasonable.  Remember what probable cause is.  Could a person of reasonable caution believe that evidence of a crime is located in the place to be searched?  Probable cause doesn’t demand a showing that the evidence be absolutely true.  The real question is whether the officer reasonable believed the evidence to be true at the time he or she provided it to the magistrate.  However, the Good Faith exception certainly isn’t intended to save the evidence and won’t save the evidence if the officers deliberately or recklessly provide false information to the judge.

Miller:    Jenna, have we done it - are we done?

Solari:    Well just about.  A quick review I think we’re done with our 4th Amendment road map.  Some advice - remember the two triggers of the 4th Amendment; specifically, a government intrusion into a place where somebody has a reasonable expectation of privacy.  Once the 4th Amendment’s triggered, the court’s going to require your intrusion to be reasonable.  Warrantless search and seizures are going to be presumed to be unreasonable.  Officers have to be able to articulate a reasonable basis for doing away with either the probable cause and or the warrant requirement.  So officers might look at it this way: they have to either be prepared to either stand in front of a magistrate and articulate PC to get a warrant or stand in front of judge later on and explain why they didn’t get one.  The Exclusionary Rule exceptions we just talked about are our last ditch effort to save evidence and they’re seldom successful.

Miller:    Okay before we close why don’t you give our listeners that FLETC website.

Solari:    Alright you can find all of our podcast at www.fletc.gov/training/programs/legal-division/podcasts.

Miller:    Jenna, thank you very much.

Solari:    Thank you Tim.