Pg 6 Flashcards
If there is a violation of knock and announce, does that require exclusion of the evidence under the exclusionary rule?
No
What is an illegal confirmatory search?
When police already have probable cause for a search, but before getting a warrant, they illegally enter the premises to confirm that contraband is present, then they get a warrant based on the original probable cause.
Although in this case the independent source exception applies because the police illegally searched and violated the fourth amendment, but nothing in the affidavit to the magistrate came from that search, so when the warrant was issued, there was no connection between the search and the warrant, so it was based on independent information
What is attenuation?
When the causal connection is remote or a constitutional guarantee that has been violated won’t be served by the suppression of evidence. This considers time, distance, and intervening acts by the defendant to decide if evidence has become attenuated from the initial illegality.
Is evidence immediately following illegal conduct considered to be attenuated?
No
When might attenuation apply?
If you can show a break in the causal chain
What is the reasoning behind attenuation?
There comes a point when the consequences of the illegal police action become so attenuated that the deterrent effect of the exclusionary rule no longer justifies its cost
Is the “but for“ test the proper one to use to figure out the exclusionary rule?
No, because evidence isn’t necessarily fruit of the poisonous tree just because it would not have come to light “but for“ the illegal action of police.
Does a Miranda waiver attenuate the initial taint?
No
If someone commits a new crime as a reaction to an illegal police action, such as an assault or being in a dangerous way, is that enough to break the causal chain and justify a later arrest or search under attenuation?
Yes
What are things that can break the chain in order for attenuation to apply?
– committing a new crime as a reaction to illegal police action
– consent
How can consent break the chain for attenuation?
Consent can break and purge the taint depending on these factors:
– if the police made it clear that the initial illegal detention was over before asking for consent to search. They would’ve had to tell the suspect that he is free to go or return his belongings to him
– if the police told a suspect he could refuse consent
– temporal proximity between the illegal detention and the request for consent to search
– if discovery of the area that the police are requesting to search happened because of an illegal detention
What are the factors to determine attenuation?
- the amount of time between the initial unlawful act and getting the challenged evidence. If more than a year has passed, that is enough
– intervening acts of free will: someone agrees to provide testimony that breaks the causal chain
– flagrancy of the violation: the more serious violation, the longer it takes for the taint to dissipate
– nature of derivative evidence: verbal evidence is more likely to be free of taint - proximity to arrest or confession
– purpose or flagrancy of the official misconduct
What is involved in the independent source rule with regard to the exclusionary rule?
The exclusionary rule doesn’t apply when the government learned of the evidence from an independent source because the evidence is not the fruit of a prior violation. This allows the admission of evidence that is discovered by means wholly independent of any constitutional violation
How do you challenge the independent source rule?
By showing that the initial illegality is directly linked to the information used to get the warrant
If there are two groups of police that don’t know about each other and one group has probable cause and already has a warrant and the other does an illegal search, is that evidence admissible?
Yes, because of the independent source rule since it could have come into the government’s hands lawfully by the independent source. This only counts if the warrant was already gotten
