Crim Pro - 4th amendment S/S - issue 4: Can you still admit evidence from unconstitutional S/S

Question 1

ISSUE FOUR: To what extent can prosecutors use the evidence gathered in an unconstitutional search and seizure against the defendant in court?

(Note: we reach issue 4 only if the S/S did not comply with the search warrant and wasn’t saved by good faith (though in NY no good faith), OR was executed without a warrant and did not fit an exception)

Answer 1

Federal Exclusionary Rule: Evidence, whether physical or testimonial, that is obtained in violation of a federal statutory or constitutional provision is INADMISSIBLE in court against the individual whose rights were violated
(**FIRST THING YOU PUT IN ESSAY ANSWER IS THE GENERAL RULE)

however, several limits to this exclusionary rule
FOCK-P
(1) "Fruit of the Poisonous Tree"
(2) Officers' "reasonable" mistake
(3) Case-in-Chief v. Cross-Examination
(4) "Knock and Announce" violations
(5) Police Error

Question 2

What are the limits to the general exclusionary rule of evidence obtained in an unconstitutional S/S?

Answer 2

FOCK-P

“FRUIT of the Poisonous Tree” - both direct and “derivative” evidence are inadmissible unless one of the exceptions applies to allow “tainted fruit”

OFFICERS’ REASONABLE MISTAKE - exclusionary rule does not apply to evidence erroneously obtained when executing a search warrant, provided an officer’s mistake was REASONABLE

CASE-in-Chief v. Cross Examination - Unconstitutionally obtained evidence is excluded from the prosecutor’s case-in-chief ONLY; it MAY be introduced to IMPEACH D’s testimony on Cross-Examination

“KNOCK AND ANNOUNCE” violations - a failure to comply with “knock and announce” rule does NOT require suppression of evidence that is subsequently discovered

POLICE ERROR - To trigger the exclusionary rule, erroneous police conduct must be deliberate, reckless, or GROSSLY negligent

Question 3

“Fruit of the Poisonous Tree”

Answer 3

General Principles
DIRECT EVIDENCE - most of the unlawfully seized evidence is DIRECTLY linked to the prior unconstitutional conduct - e.g. evidence gathered pursuant to search warrant that violates 4th amendment

DERIVATIVE EVIDENCE - Evidence (both physical and testimonial) obtained by exploiting prior unconstitutional conduct is generally inadmissible as well in prosecutor’s CASE-IN-CHIEF - e.g. confession obtained as a result of an unlawful arrest

However, prosecutor can NULLIFY “fruit of poisonous tree” by breaking the causal link between the original illegality and the criminal evidence that is later discovered (3 doctrines)

(i) INDEPENDENT SOURCE
(ii) INEVITABLE DISCOVERY
(iii) ATTENUATION

Question 4

How can a prosecutor nullify “fruit of the poisonous tree” to make the evidence admissible?

Answer 4

Prosecutor can NULLIFY “fruit of poisonous tree” by breaking the causal link between the original illegality and the criminal evidence that is later discovered

Three doctrines

(1) INDEPENDENT SOURCE: this doctrine applies where there is a source for the discovery and seizure of the evidence that is distinct from the original illegality (not tainted by the unconstitutionality)
(2) INEVITABLE DISCOVERY - the evidence would NECESSARILY have been discovered through lawful means (e.g. body of dead girl found via unlawful interrogation, but would have independently been found by lawful police grid search)

(3) ATTENUATION - This doctrine admits derivative evidence where the passage of time and intervening events “purge the taint” of the original illegality and restore the defendant’s free will
(e. g. D illegally arrested on Friday, released Sat, meets atty Mon, then Tues comes to police station and confesses)

Question 5

WIRETAPPING AND EAVESDROPPING - 4 major requirements for a valid wiretap warrant

Answer 5

Mnemonic: “Screen Telephone Calls Carefully”

S- Suspected Persons - the warrant must name the SUSPECTED PERSONS whose conversations are to be overheard

T- Time - The wiretap must be for a strictly limited TIME period (30 days max in NY)

C - Crime - There must be probable cause that a specific CRIME has been committed

C - Conversations - The warrant must describe with particularity, the CONVERSATIONS that can be overheard

Question 6

“Unreliable Ear” Doctrine and Assumption of Risk

WIRETAPPING AND EAVESDROPPING

Answer 6

If you speak to someone who has agreed to a wiretap or some other form of electronic monitoring, you have no 4th amendment claim; you ASSUME THE RISK that the other party will not keep your conversations private