Chapter 10 WHERE THE EXCLUSIONARY RULE DOES NOT APPLY

Chapter 10 WHERE THE EXCLUSIONARY RULE DOES NOT APPLY 2016 Cengage Learning. All Rights Reserved.

Learning Objectives Define standing for Fourth Amendment purposes. Explain the role of consent in searches of persons or residences. State when property is abandoned for Fourth Amendment purposes. List the factors to be considered when the good faith test from Leon is applied to a search warrant or an arrest. Distinguish good faith from honest mistake.

Where Does the Exclusionary Rule Not Civil cases and proceedings. Apply? In situations where consent was given by a party with standing. Evidence obtained in a private search by a private person. A private search can become a government search when the government enters participation in the search.

The Limits of the Exclusionary Rule The goal of the exclusionary rule is to deter improper police conduct. In theory, this benefits all citizens. In most cases the direct beneficiary of the rule is someone who would be convicted if the evidence were not excluded. The rule can thus result in dangerous criminals going free. The U.S. Supreme Court has repeatedly held that the [exclusionary] rule has been [and is] restricted to those areas where its remedial objectives are thought most efficaciously served.

Evidence Obtained in a Private Search Evidence obtained in violation of the Fourth Amendment is generally inadmissible under the exclusionary rule. This prohibition applies to mistakes or misconduct by the police and other officials in the executive branch of government. The exclusionary rule does not apply to private persons. Evidence obtained by private persons, even if obtained illegally, is not subject to the exclusionary rule.

Burdeau v. McDowell 256 U.S. 465 (1921) The Court held that the Fourth Amendment does not apply to private searches. Evidence obtained by private persons, even if the result of illegal conduct, is not subject to the Exclusionary Rule. If the illegally obtained materials end up in the hands of the prosecution who can show clean hands the evidence is admissible.

Evidence Obtained in a Private Search A private search can be transformed into a government search if the government participates in the search. Searches by private security guards in the course of their employment are generally not Fourth Amendment violations.

People v. Wilkinson 78 Cal. Rptr. 3d 501 (Cal. 2008). Defendant in a burglary case moved to suppress evidence because it had been taken by another person in cooperation with police. Motion was denied. On appeal, the court reversed, holding that while the other person s original entry into the defendant s room was a purely private search, a subsequent search was instigated by the police and lost its private status. The evidence was suppressed.

United States v. Day 591 F.3d 670 (4 th Cir. 2010) The court held that a search of a defendant s person by armed security officers was a private search, even though under Virginia state law the officers were given power to make arrests.

Application in Criminal Cases The exclusionary rule forbids the use of evidence tainted or soiled by improper or illegal police conduct in criminal cases. Such evidence, however, can be used in civil cases.

United States v. Janis 428 U.S. 433 (1978) The U.S. Supreme Court ruled that the Fourth Amendment exclusionary rule does not apply to civil cases. Even if the evidence is suppressed due to improper law enforcement conduct, it can be used to obtain a civil judgment against a defendant.

When is a Search Private? Courts have adopted the following requirements to determine whether a search is purely private: The evidence was obtained by a private person acting in a private capacity. Held private: Armstrong v. State, 46 Se.3d 589 (Fla. App. 2010) Held not private: State v. Smith, 782 N.W.2d 913 (Neb. 2010) The idea or initiative to obtain the evidence originated with the private person. Held private: Limpuangthip v. United States, 932 A.2d 1137 (D.C. 2007) Held not private: State v. Madison, 760 N.W.2d 370 (S.D. 2009) (continued)

When is a Search Private? Courts have adopted the following requirements to determine whether a search is purely private: The police or government agent did not participate in obtaining the evidence. Held private: Dawson v. State, 106 S.W.3d 388 (Tex. App. 2003) Held not private: United States v. Booker, 728 F.3d 535 (6 th Cir. 2013)

Evidence Obtained in a Consent Search A warrantless search of premises is permissible if undertaken with the valid consent of the occupant. Admissibility of evidence obtained in a consent search has two requirements: Proof that consent was given voluntarily; and Proof that consent was obtained from a person with actual or apparent authority to grant the consent.

Evidence Obtained in a Consent Search The person giving consent may limit the search area or, after giving consent, may revoke the consent. Consent is not needed to enter premises if there are exigent circumstances that exist.

U.S. v. Drayton 536 U.S. 194 (2002) police officers act in full accordance with the law when they ask citizens for consent. It reinforces the rule of law for the citizen to advise the police of his or her own wishes and for the police to act in reliance on that understanding. When this exchange takes place, it dispels inferences of coercion.

Georgia v. Randolph 547 U.S. 103 (2006) The U.S. Supreme Court held that an objection to a search by a co-inhabitant makes search nonconsensual, even though the other inhabitant gave consent to the search. The court held that, while there was a fine line drawn that a third party consent will be recognized, it can only occur if this is within the wishes of the other cohabitant.

Standing and Right of Privacy To succeed in a motion to suppress evidence, a defendant must show that his or her own rights were violated, not the rights of some other person. This concept is called standing. In Fourth Amendment cases, standing is mainly based on the existence of a reasonable expectation of privacy in the place where a search or seizure occurred.

Standing and Right of Privacy A reasonable expectation of privacy exists only if: An individual actually expects privacy. His or her expectation is reasonable. A police search is an intrusion into a right of privacy. If the officer can show authority to make the search, the intrusion into privacy is lawful.

Stone v. California 376 U.S. 483 (1964) The U.S. Supreme Court held that a person s expectation of privacy is not limited to permanent residences, but includes rental homes and automobiles.

Examples of Right of Privacy Examples of situations in which persons can have a reasonable expectation of privacy include: Employees in the workplace; Persons renting hotel rooms, storage lockers, or rental vehicles using their own names; Overnight guests in another person s home; and Owners of a vehicle (not passengers) in the vehicle.

Abandoned Property If, by conduct or words the defendant shows he or she has relinquished the expectation privacy in property, the object can be used as evidence. The U.S. Supreme Court defined the legal concept of abandoned property in their 1989 decision in United States v. Thomas.

Throwaway as a Type of Abandonment Persons who flee the police with illegal drugs or other contraband on their person often throw away what can be very incriminating evidence. If the throwaway is a voluntary abandonment, courts allow the object to be used as evidence. If the throwaway is the direct or indirect product of an illegal police stop of other improper police conducts, courts generally forbid the use of the throwaway item as evidence.

California v. Hodari 499 U.S. 621, 111 S. Ct. 1547 (1991) Police officers observed several youths who ran at the approach of their unmarked car. The officers chased them on foot. Prior to being tackled, one of the youths threw crack cocaine to the ground. The U.S. Supreme Court held that the cocaine could be used as evidence against the youth. The cocaine was in this case not the fruit of a seizure

Michigan v. Chesternut 486 U.S. 567, 108 S. Ct. 1975 (1988) As he was being followed by police, defendant discarded pills that an officer believed contained codeine. Defendant was arrested and found to be in possession of heroin and a hypodermic needle. The U.S. Supreme Court held that the defendant was not unlawfully seized during the initial police pursuit and affirmed the use of the pills, heroin, and needle as evidence. The police conduct was not so intimidating that the defendant could reasonably have believed he was not free to disregard the police presence.

Denial of Ownership as a Form of Abandonment Persons who deny ownership of property to a law enforcement officer relinquish their right of privacy in the property and do not later have standing to challenge the use of evidence obtained from the property.

Examples of Denial of Ownership Luggage at an airport; A garment bag at a train station; Luggage in the trunk of car; A satchel the defendant hid after a car accident; and An apartment.

Abandoned Real Estate For purposes of real estate law, real estate cannot ever be abandoned in the literal sense. However, courts have found that real estate can be abandoned for Fourth Amendment purposes. To prove a structure has been abandoned, police must produce evidence that would lead a reasonable person to believe the structure has been abandoned.

Evidence Obtained from Garbage or Trash The owners of trash receptacles kept in a home or a garage have Fourth Amendment constitutional protection while the receptacles are located in such places. Evidence obtained from these places without valid consent or a search warrant is suppressed. The U.S. Supreme Court has held that defendants can have no reasonable expectation of privacy in the plastic garbage bags left on or at the side of the public street.

Abandoned Motor Vehicles Many states have statutes that define when a vehicle is legally abandoned. For example, Section 342.40(i) of the Wisconsin Statutes provides that if a vehicle is left unattended on a public highway or on private or public property for more than 48 hours, it is deemed abandoned and constitutes a public nuisance.

United States v. Duong 336 F. Supp. 2d 967 (D. N.D. 2004) A state patrol officer discovered a car overturned in a highway ditch and was unsuccessful in identifying and locating the owner. The officer conducted an inventory search of the vehicle and found hundreds of pounds of marijuana. At trial the defendants moved to suppress the evidence. The court refused, holding that the vehicle was abandoned and that the driver had no reasonable expectation of privacy in the vehicle.

Evidence Discovered in Open Fields Curtilage is that area close to a home where persons assert a right of privacy. The protection of the Fourth Amendment extends to the home and to the curtilage. Courts have extended Fourth Amendment protection to the curtilage and have defined it by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private.

United States v. Dunn 480 U.S. 294, 107 S. Ct. 1134 (1987) The U.S. Supreme Court held that curtilage questions should be resolved with particular reference to four factors: The proximity to the home of the area claimed to be curtilage; Whether the area is included within an enclosure surrounding the home; The nature of the uses to which the area is put; and The steps taken by the resident to protect the area from observation by people passing by.

Evidence Discovered in Open Fields There is a high degree of privacy in the curtilage of a one-family dwelling that is fenced in so as to be protected from observation by people passing. The degree of privacy is much lower, however, in the curtilage of a fifty-unit apartment building because all occupants of the building can use the common area available to them. The extent of the curtilage involving driveways and walkways on the edge of a defendant s property is frequently discussed.

Hester v. United States 265 U.S. 57 (1924) The U.S. Supreme Court refused to extend the Fourth Amendment to sights seen in an open field. Government agents trespassing on the defendant s land saw the defendant running away and throwing contraband to the ground in open fields. The court that the contraband could be used as evidence to obtain a conviction against the defendant.

Plain View or Open View Doctrine The plain view or open view doctrine is the principle that if a law officer is where he or she has a right to be and sees evidence or contraband in plain view, then the evidence may be seized and used in a criminal trial. Plain view is not limited to visual observations. Any of the five human senses may provide information that makes it immediately apparent to the police that the object is evidence of a crime.

Texas v. Brown 460 U.S. 730 (1983) The Court held that for the doctrine to apply the officer must: Make a lawful intrusion or otherwise be properly positioned from which he can view a particular area; The officer must discover incriminating evidence inadvertently ; and It must be immediately apparent to the police the items they observe are evidence of a crime.

Oliver v. United States 466 U.S. 170, 180, 104 S. Ct. 1735, 1742 n. 11 (1984) An open field include[s] any unoccupied or undeveloped area outside of the curtilage. An open field need be neither open nor a field as those terms are used in common speech.

United States v. Leon 104 S. Ct. 3405 (1984) The U.S. Supreme Court held that evidence obtained in good faith reliance on search warrant by police officers will not be excluded. Police officers executed a search warrant that they believed to be valid but was defective. The evidence obtained under the defective warrant was ruled to be admissible because the police believed in good faith that the search warrant was valid.

Evidence Discovered in Good Faith or by Honest Mistake The Leon good faith exception permits the use of evidence obtained through the use of a search warrant containing a technical error that does not violate a fundamental constitutional right of a suspect. The warrant and affidavits given to obtain such evidence must be sufficient so that an objectively reasonable officer would rely on the warrant that was issued.

State v. Lawson Sixth Circuit Court of Appeals, 409 F.3d 744 (2005) A search warrant was issued even though the affidavit submitted did not state all the facts as they actually occurred and were known to the officer preparing the affidavit. As a result, the search warrant did not satisfy the probable cause requirement. The U.S. Court of Appeals held the good faith exception inapplicable.

United States v. McClain 444 F.3d 556 (6th Cir. 2005), cert. denied, 127 S. Ct. 580 (2006) Using information given them by officers who first entered a house during a warrantless search, drug investigators obtained a warrant to search the house, and found evidence used to charge the defendant with illegal-drug crimes. The trial court suppressed the evidence, but on appeal the court of appeals held that the good faith exception from Leon applied, even though the warrant was itself the fruit of the poisonous tree. The court noted that other circuits had reached the opposite result.

Good Faith and Changes in the Law Difficulties with police compliance with Fourth Amendment requirements is exacerbated by court decisions, mainly those of the U.S. Supreme Court, that change the rules under which the police operate. The good faith exception can be used to solve this dilemma for the police.

Davis v. United States 131 S. Ct. 2419 (2011) The U.S. Supreme Court held the police acted in strict compliance with a binding precedent, and their behavior in conducting the search of the vehicle after arresting the defendant was not wrongful.

The Honest Mistake Rule The honest mistake rule is the U.S. Supreme Court s ruling that courts must allow some latitude for honest mistakes that are made by officers in the dangerous and difficult process of making arrests and executing search warrants.

Maryland v. Garrison 107 S. Ct. 1013 The U.S. Supreme Court held that evidence obtained under honest mistake by police will not be excluded. The police reasonably believed they were in the right apartment and did not realize their mistake until after finding heroin, cash, and drug paraphernalia in the defendant s apartment.

United States v. Ritter Third Circuit Court of Appeals, 416 F.3d 256 (3rd Cir. 2005) Believing that only one dwelling existed on the defendant s property, federal officers executed a search warrant. Finding several dwellings on the property, the officers searched them all and found illegal drugs. On appeal, the court held that the officers were required to stop the search after the discovery, and that the honest mistake rule did not apply to evidence seized after the officers knew of the mistake. Because it was not clear when the illegal drugs were found, the case was remanded.

Heien v. North Carolina 737 S.E. 2d 351 (N.C. 2012) A police officer stopped a car with one working brake light, in the mistaken belief that North Carolina law requires cars to have two working brake lights. A subsequent search of the car uncovered illegal drugs and the driver was convicted. On appeal the defendant contended the drug evidence should be suppressed. The North Carolina Supreme Court held the honest mistake by the officer satisfied the individualized suspicion requirement, because the officer reasonably believed the defendant was breaking the traffic laws.

Other Areas Where the Exclusionary Rule Does Common carriers; U.S. Customs Service; Grand jury proceedings; Probation or parole revocation; Not Apply Searches by probation or parole officers; Eyewitness testimony of witness to robbery; Evidence obtained in foreign countries by foreign officials; and Other investigative procedures.