Exclusionary Rule and the fruit of the Poisonous Tree - Essay Example

The Exclusionary Rule The exclusionary rule stems from the Fourth and Fifth Amendments in the Bill of Rights, ly, to protect citizens from unreasonable searches/seizure and self-incrimination. The rule holds that evidence collected in violation of either of these amendments is not admissible for criminal prosecution in a trial. Essentially the exclusionary rule is designed as a large disincentive to police/prosecutors who might illegally gather evidence. The rule first appeared with Weeks v. United States1 in which the United States Supreme Court held that illegal seizure of items from a private residence constitutes a violation of the Fourth Amendment. Such illegally obtained evidence was henceforth banned form use in Federal courts. Justice William Day wrote the unanimous opinion, saying that the Fourth Amendment essentially embodies the old English common law principle that ‘a man’s home is his castle’, and that it was intended to “forever secure the people, their persons, houses papers, and effects, against all unreasonable searches and seizures under the guise of law.”2 Justice Day continued with what may be one of the most damning indictments of illegal police conduct as he argued that “the tendency of those who execute the criminal laws of the country to obtain convictions by means of unlawful searches or enforced confessions . . . should find no sanction in the judgment of the courts which are charged at all times with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights.”3 The vital element of this argument is that just because the police and prosecutors had routinely performed illegal searches and “pressured” (some would say tortured) suspects into giving confessions, the mere fact that the illegality was widespread and of long duration provided no defense. Interestingly, Day’s argument was essentially the opposite of William Rehnquist’s argument for keeping the Miranda rights. Renquist argued that while the constitution may not guarantee or require such rights, the fact hat they had become part of the overall fabric of the legal system in particular and of American society in general they had become an essential fabric of the legal landscape.4 While the actual reasoning behind the exclusionary rule may be somewhat hazy at times, especially in these early cases when it was being initially being developed, and before its progeny had fleshed out the whole, its institution seems to have been catalysed by a view of the whole framework of the legal system5: If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secured against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution. The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land.6 The ‘practical’ advantages gained by convicting those who are, most likely, actually guilty, do not outweigh the much more profound problems that appear through systematically denying citizens of their rights. The Constitution must apply even when it is inconvenient, in fact, especially when it is inconvenient. It is then that the real power of having a system in which men are governed by laws rather than men appears. Interestingly there was a long delay before the exclusionary rule became binding on the States. It was only 47 years after the Federal case that Mapp v Ohio7 made the rule apply to the states through the Fourteenth Amendment guarantee of due process. Justice Potter Stewart regarded this as “the most important search and seizure decision in American history.”8 This case is fascinating because, like Weeks it involved the discovery of material by the police that had nothing to do with the original investigation. In Mapp the Cleveland police went to the home of Dollree Mapp, thinking that the woman and her daughter were hiding a suspected bombing fugitive. They demanded entrance ot he house but Mapp refused it because they didn’t have a warrant. The police returned a few hours later, waved a piece of paper in front of Mapp (falsely claiming that it was a warrant) and then entered the house. They searched the whole house and found a chest full of pornographic materials in the basement, upon which the police officers arrested Mapp for breaking the Ohio law that prohibited possession of obscene material. Mapp was found guilty and her case was appealed to the Ohio Supreme Court, who found that the evidence was permissible (even though it had been gained without a warrant) because it was taken from a chest, not from Mapp’s actual person. The Supreme Court voted 6-3 in favor of Mapp, stating that the exclusionary rule also applied to the states as well as the federal government. This reversed Wolf v. Colorado9 in which the Supreme Court had stated that the 14th Amendment made the 4th Amendment apply to the states, but that the exclusionary rule didn’t apply to the states. This ruling had led to an apparent contradiction, and with Mapp the Supreme Court appears to have applied common sense, in that the individual it does not matter whether it is the State or the Federal government that is performing the illegal search. The invasion of privacy and guarantees against unwarranted searches/seizure should apply equally to both the Federal and the states’ governments. The importance of the exclusionary rule and the subsequent controversy that still revolves around it was succinctly stated by Justice Clark. He defended the Court’s decision against charges that it would allow criminals to go free because of a simple ‘mistake’ on the part of the police and/or prosecutors, by stating that this ‘mistake’ is one of the most important that can be made. Clark suggested that “it is the law that sets him (the criminal) free”, and further, and most importantly, “nothing can destroy a government more quickly than its failure to observe its own laws.”10 Justice Black, in his concurring opinion, stated that when the “Fourth Amendment’s ban against unreasonable searches and seizures is considered together with the Fifth Amendment’s ban against compelled self-incrimination, a constitutional basis emerges that not only justifies but requires the exclusionary rule.”11 The combination of the Fourth and Fifth Amendments, together with the Fourteenth Amendment’s guarantee of equal protection between the states, creates a powerful case for exclusionary rule. It is also, at least partially, based upon the English Common Law from which much of American law stems, originating with the Magna Carta that, among other matters, stopped Kings, (and by logical reference) the State from making searches of persons and/or property merely because they feel that a crime may have been committed. The exclusionary rule has provided for an orderly and focused method of search warrants being instituted in which the government cannot go on ‘fishing expeditions’ to see what evidence they might manage to unearth. The so-called fruit of the poisoned tree doctrine holds that any evidence discovered directly or indirectly through an illegal search or seizure is inadmissible in a court.12 The rationale is that the evidence would not have been found were it not for a violation of the Fourth Amendment, and so any such evidence, however remote from the original search, cannot be used in a trial. As with the exclusionary rule, the fruit of the poisoned tree doctrine is specifically designed to stop the police from making illegal searches. As with many newly discovered rights from around the time of the Warren Court era, the exclusionary rule has come under attack since its first inception, and various exceptions to the rule have been instituted that perhaps lessen its ability to be ‘used’ by criminals in an unintended manner, while maintaining the overall principles of stopping overbroad police powers to search and seize property. First, although the Supreme Court never intended for the principle to be used in such cases, the exclusionary rule does not apply to a civil case, a grand jury proceeding or in a parole revocation. These, as will be seen, are sensible exceptions that do not dilute the intended purpose of the rule. Howver, once the Courts started to include such broadly (and ill) defined concepts as the “good faith” exception, massive loop-holes in the exclusionary rule were opened that could (and have) provided the authorities with wide latitude to perform warrant less searches and seizures. Taking the civil proceeding exception first, as the bar for the Plaintiff is set much lower (normally a “preponderance of the evidence” rather than the strict “beyond a reasonable doubt” of the criminal trial) and as the possible penalties do not involve the taking away of liberty through jail time it makes sense that much more lax evidence rules pertain in civil court. A grand jury deliberation does not actually convict an alleged criminal of anything, it is merely used to indict the criminal. The grand jury must take care not to rely solely upon evidence gained against the principles of the exclusionary rule because such evidence will not be admissible in a criminal court. But for the lower standard needed to see whether enough evidence exists, in its totality, to bring a case to trial it makes sense that as much evidence as possible is allowed in. In a parole revocation there is not an alleged criminal who is entitled to be regarded as innocent, with all the rights therein enjoyed, but rather a convicted criminal. It is logical that a lower standard for evidence should be required to revoke a parole as the individual is still officially serving his/her sentence. Once the parole has been successfully served no revocation of it can occur (except for cases when a prisoner has been given a life sentence and is essentially on parole for the rest of his natural life) and the prisoner returns to the ranks of the ordinary citizen, for whom the exclusionary rule applies. A further exception to the exclusionary rule, but one that seems to be based on less firm ground, is the fact that illegally obtained evidence can be used to impeach the credibility of a defendant’s trial testimony. While this exception is limited to times when the defendant actually testifies, and only in cases when the evidence is relevant in calling into question the defendant’s veracity, this does seem to at least provide an argument for a Fifth Amendment case. Justice Black’s opinion in Mapp might be used to counter this exception to the rule: the accused’s words are being used against him in a self-incriminatory manner through their apparent contradiction with illegally obtained evidence. A further exception to the exclusionary rule is one that makes admirable sense. This is the inevitable discovery doctrine that was adopted by the Supreme Court in Nix v. Williams13. This exception holds that evidence obtained through an unlawful search or seizure can be admissible in a criminal trial if it can be established, to a very high degree of probability, that normal police investigation would have found the evidence anyway. The inevitability (certainty) of the discovery is the most important element of this exception. The logic, which seems justifiable, behind the finding is that as the evidence would have been found anyway, police misconduct and illegal searches would not be deterred by applying the rule. This exception was weakened by People v. Sith14, which stated the doctrine cannot be used to acquire primary evidence, but only secondary evidence that has resulted from the original, legally-obtained initial evidence. The attenuation exception determined that the evidence can only be suppressed if there is a clear causal connection between the illegal police action and the evidence. People v. Martinez15 established a three-pronged test to establish whether there is sufficient attenuation. First, the time connection between the illegal arrest and the subsequent confession/consensual search. Second, the presence of intervening factors or event (s) and lastly the “purpose and flagrancy”16 of the official conduct. The independent source17 exception allows the evidence if knowledge of that evidence was gained from a separate or independent source that is completely unrelated to the alleged illegality. One of the most important exceptions to the exclusionary rule is the good faith exception that allows evidence gathered illegally into the court if the violation of the Constitution has only resulted in a minor or technical error. Thus if a peace officer acts in good faith on a warrant that has a spelling in it, or in which the address of the place to be searched has been incorrectly stated, then the evidence resulting from the search is not suppressed. However, if the warrant states completely the wrong address then the evidence will be suppressed, or if “no reasonable officer would have relied no the affidavit underlying the warrant.”18 The individuals involved with stopping an accused from enjoying his constitutional rights have a number of actions that they are personally liable for, but which rarely actually occur. The fact that police officers rarely suffer personal consequences due to overzealous policing means that many searches are performed with the hope that they will fall under one of the exceptions. If not, the evidence will be suppressed, but the officer involved will not suffer severely. In theory an illegal search and seizure may be criminally actionable, but examples of officers being so prosecuted are very rare.19 Again, a police officer who makes an illegal search and/or seizure may be subject to internal departmental discipline, especially in those few jurisdictions that had police oversight boards with real power that are separate from the chain of command. But once again, such disciplinary actions are rare. If a person has been illegally arrested or had their property illegally searched they may have an action under various tort laws, and the police officer involved may be personally liable. The Supreme Court has recently upheld the ability to sue in such cases, but police officers have the normal common law defenses, the strongest of which is the good faith doctrine discussed above. Practically, the people whom are subject to illegal search and seizures “are often disreputable persons toward whom juries are unsympathetic, or they are indigent and unable to bring suit.”20 The practical result of these difficulties is that the Courts have emphasized that suppression of illegally gained evidence is the most effective form of deterring the original illegal action on the part of the police. One fascinating aspect of the exclusionary rule was the apparent convergence of Fourth and Fifth Amendments that its original institution entailed. As a concurring opinion put it, We have already noticed the intimate relation between the two Amendments. They throw great light on each other. For the unreasonable searches and seizures condemned in the Fourth Amendment are almost always made for the purpose of compelling a man to give evidence against himself, which in criminal cases is condemned in the Fifth Amendment; and compelling a man in a criminal case to be a witness against himself, which is condemned in the Fifth Amendment, throws light on the question as to what is an unreasonable search and seizure within the meaning of the Fourth Amendment. And we have been unable to perceive that the seizure of a mans private books and papers to be used in evidence against him is substantially different from compelling him to be a witness against himself. We think it is within the clear intent and meaning of those terms.21 Justice Black is essentially relying on the utilization of the exclusionary rule as clearly demanded by the Fifth Amendment, rather than the less powerful implied sense that he finds within the Fourth Amendment. While the theory of the “convergence” of two Amendments has now been rejected by the courts, it is an interesting interpretation of the Constitution. The idea of the Constitution as a living whole, a kind of organism that only makes sense when seeing its whole, but within which the individual parts are vital makes it a breathing document rather than one set in stone. Amendments may indeed ‘comment’ upon one another and support one another. Of course the other side of this is when amendments can apparently contradict one another or at least call into question the validity and efficacy of another. Thus the ”right to bear arms” may actually contradict the “pursuit of happiness” that is guaranteed or at least envisioned elsewhere. The right to freedom of speech is curtailed by the ban on condoning the violent overthrow of the government or the assassination of the President. The exclusionary rule was one of the most important developments in the history of constitutional law. Its guarantee of the citizen’s rights against the awesome and at times overwhelming power of the government enshrined the idea that the individual must be protected against unwarranted invasions of his/her privacy. The exceptions to the rule that have been recently developed are understandable in the fact of outcry against criminals “getting off” on a “technicality”, but such outcries exhibit a sad ignorance of the true nature of the law. The Constitution (and the rights that it guarantees) is not made up of a series of irrelevant “technicalities” that may be ignored on a whim or when convenient. If it is to mean anything the rights that it guarantees must be upheld even when it is very inconvenient to do so. Actual cases of murderers “getting off” because of an illegal search are actually very rare, despite what popular entertainment would have the public think. But such criminals are not ‘getting off”, it is, as Justice Clark suggests, “the law that sets him free”, not some technicality. Another way of looking at the exclusionary rule is to say that all laws are really technicalities, but ones that must be strictly adhered to in order to prevent anarchy. The government, with its massive power, that currently includes the ultimate power over a person’s liberty (the ability to execute him) must be held to highest standards. If the government ignores its own laws then it is providing the worst possible example for its citizens. Indeed, as in this country the government is the people22 we must be sure to protect our rights, both as individuals and groups. The exclusionary rule may be complained about, but such complaints tend to miraculously disappear when it is the complainant who is subject to the illegal search and/or seizure. ----------------------------------------------------------- Works Cited Dickerson v United States, 2000. Weeks v. United States, 232 U.S. 383 (1914) en.wikipedia.org/wiki/Potter_Stewart­ http://caselaw.lp.findlaw.com http:en.wikipedia.org/wiki http://caselaw.lp.findlaw.com http:en.wikipedia.org/wiki Mapp v. Ohio, 367 U.S. 643 (1961) Adams v New York. 192 U.S. 585 (1904 See concurring opinion, Nix v. Williams People v Arnau. Dressler, Joshua. Understanding Criminal Procedure, 3rd Edition, LexisNexis, 2002. People v Martinez 02 C.D.O.S. 714 People v Sith Samaha, Joel. Criminal Procedure. Wadsworth, New York: 2004. Wolf v. People of the State of Colorado, 338 U.S. 25 (1949) Read More