Background Report on the Exclusionary Rule

Abstract: The exclusionary rule refers to the judicially crafted remedy prohibiting the government from admitting at trial evidence gained in violation of a defendant’s constitutional rights. The rule

was developed in the context of unlawful searches and seizures in violation of the Fourth Amendment, but is also applied to violations of the Fifth, Sixth, and Fourteenth Amendments. In the Fourth Amendment context, the rule primarily acts to deter future unlawful action by police officers. The Supreme Court has crafted several exceptions to the rule which admit improperly gained evidence when the deterrence value of exclusion would be at a minimum. This brief background explores the grounds and rationale for exclusion; the application of the several limitations on its scope, and its administration at trial.

I. Why Exclusion: The History, Bases, and Rationale for the ‘Exclusionary Rule’

The “exclusionary rule” is a judicially crafted remedy which prohibits the government from using evidence obtained in contradiction of a defendant’s constitutional rights in its case in chief at trial. This can include suppression not only of physical evidence discovered by police, but also witness statements, and admissions by the accused party. The term “exclusionary rule” is usually used in connection with evidence obtained by violation of the Fourth Amendment proscription of unreasonable searches and seizures, but the Supreme Court has held that evidence may also be excluded under the Fifth or Sixth Amendments, or even as integral to constitutional due process. While the different constitutional guarantees sometimes provide different rationales for exclusion, a number of common issues prevail making generalized discussion of exclusion possible. Still, differences in the constitutional bases for exclusion do occasionally affect the scope of evidence suppressed, making it important to understand why each Amendment calls for exclusion, and how such differences might affect application.

Bases for Excluding Evidence:

The Fifth Amendment provides that “no person [] shall be compelled in any criminal case to be a witness against himself.” The Court has found that because the Fifth Amendment directly addresses the prohibition of certain evidence, it naturally demands its own exclusionary rule as a remedy for violations.2 When a statement is obtained in such a way that a defendant can be said to have been compelled to incriminate himself, meaning that an admission was made involuntarily, the Fifth Amendment bars the use of that statement at trial. The well known ‘Miranda rules’, requiring that persons subject to custodial interrogation be informed of their rights to counsel and against self-incrimination, also arise from Fifth Amendment rights; and a failure to so inform, or to honor these rights, can result in exclusion.3 The Miranda warnings are seen as prophylactic of Fifth Amendment violations, and a failure to warn, or comply with these rights, creates a presumption that any statements made were improperly compelled and inadmissible.4

The Sixth Amendment entitles the accused to the right to confront witnesses against him and the ‘assistance of counsel’ at all critical stages of the criminal process. The presence of counsel is considered so crucial to the accused’s ability to effectively defend himself that the absence of counsel (other than by voluntary and knowing waiver of this right) risks exclusion of evidence at trial. This means that after the right to counsel has attached ( “at or after the time that judicial proceedings have been initiated against [the defendant], whether by formal charge, preliminary hearing, indictment, information, or arraignment.”5), and the defendant has requested an attorney, police may not deliberately elicit statements

from the accused without risking the suppression of that evidence. 6 Counsel must also be notified in advance and be present at any identification procedures his client attends so that he might prevent any irregularities and be better poised to challenge the identifying witness at trial.7 The Court has offered two justifications for using exclusion as a remedy to state interference with the attorney-client relationship.

The first is that the constitutional violation in these cases is the use of improperly acquired evidence against the defendant at trial, so that exclusion prevents the injury.8 The alternative, akin to that in Fourth Amendment violations, is that penalizing police misconduct will deter the police from engaging in such behavior in the future.9

Some misconduct by police is seen to run directly afoul of the accused’s Fourteenth Amendment right to due process. This is true in situations where police practice creates a high likelihood of acquiring unreliable evidence, such as when an identification procedure obviously encourages a preordained result.10 Here, the unreasonable bias such evidence would create at trial justifies its exclusion. Due process also mandates exclusion of evidence acquired by police tactics “so offensive to a civilized system that they must be condemned,” such as use of physical violence in interrogation. 11 The grounds for exclusion here, as in Fourth Amendment cases, is again the need to deter such egregious police conduct.12

Fourth Amendment exclusion (most often identified as the “exclusionary rule”) is a judicially created remedy designed to deter unlawful police searches and seizures. Much of the law concerning the scope and application of the exclusionary rule has been developed in the context of the Fourth Amendment and later applied to other constitutional violations. The Amendment requires that searches be reasonable, which generally requires that police have probable cause to search, obtain a warrant which states the area and targets of the search with particularity, and announce their presence when executing

the search. The Court has stated that the Fourth Amendment guarantee means little if illegally seized evidence can still be used against the defendant at court and that such evidence must always be excluded if the Amendment is to have force.13 While use of the exclusionary rule has previously been justified as preserving the integrity and trustworthiness of courts by refusing any contact with improperly obtained evidence, it is now generally accepted that the rule primarily functions by removing the incentive to disregard Constitutional requirements. 14 That unconstitutional practices can lead to the loss of vital evidence and undo police investigative work is meant to discourage officers from engaging in such behaviors. This deterrence value is not specific to any given case or police force but is accomplished over time by the courts repeatedly highlighting the seriousness of such Constitutional offenses and bringing Fourth Amendment values to the forefront of police consciousness.15

It is worth mentioning that suppression of evidence is sometimes the remedy for non- constitutional offenses as well. A prominent example is the “McNabb-Mallory” exclusion of statements made by an arrested person who is not promptly brought before the judiciary for a hearing. Here exclusion is based upon federal statutory requirements codifying the common law “presentment rule” which was meant to prevent secret detentions and inform the suspect of the charges against him.16 While such legislation requires only that arrested persons be presented “without unreasonable delay” and has never expressly called for exclusion of evidence gathered in its violation, the Supreme Court has found that the policy of the law would be circumvented if such evidence were allowed to serve as the basis for conviction. Congress has responded to the Court’s use of an exclusionary rule by creating a ‘safe-harbor’ provision limiting its application: otherwise admissible confessions made within six hours of a suspect’s arrest are no longer excluded solely because they were made before presentation.17

1. The Development of the Exclusionary Remedy.

Rights imply remedies for their violation, but the American Constitution is silent as to the appropriate remedy for violations of many of the fundamental provisions of the Bill of Rights. The Amendments mentioned above speak to the process of criminal investigation and rights at trial, but only in the vaguest of terms. Supreme Court interpretation of these provisions, however, has clarified their full reach and their mechanisms for enforcement have become clear.

American courts exercise the power of judicial review to interpret the Constitution and determine if the acts of other government branches are in accord with its mandates.18 Constitutional review is not specifically articulated in the Constitution, but has been read as a necessary ingredient in ensuring that all laws and government actions are in conformity with the Constitution, and thus acts as a check on the legislative and executive branches. While state and federal courts all exercise constitutional review, the Supreme Court is the ultimate judicial authority as to whether the laws and actions of local, state and federal governments are repugnant to the Constitution. This is not a power the Court takes lightly, acknowledging the difficulty of reversing its constitutional precedent, and also appreciating the need for the nation’s highest law to be settled and not subject to constant fluctuations with the political climate.19 After all, if a rule is found to be required by the Constitution, then it is part of the highest law of the land, and cannot be changed by legislative action but only by further action by the Court. The Court therefore considers constitutionality only in the context of actual controversies and cases and will not offer advisory opinions as to constitutionality, or entertain hypothetical challenges to a law.

The Supreme Court under Chief Justice Earl Warren (1953-1969) was characterized by expansive liberal interpretations of the Constitution. In the area of criminal procedure, this trend was particularly striking, and has often been termed a ‘revolution’ in that it found many new constitutional protections of the individual against government investigation and prosecution. The Warren Court critically found that these rights were also applicable against state government actions, where the vast majority of law

enforcement activity occurs, as well as the federal government. While the Warren Court has sometimes been criticized for protecting the guilty at the expense of effective police power, it is now difficult to imagine American law without many of the protections it announced and which we now take for granted. These include the right to be provided free independent counsel, the requirement that police officers inform custodial suspects of their rights to remain silent when questioned, and the extension to the states of the “exclusionary rule.”

Following the period of expansion during the Warren Court’s criminal procedure revolution, later Supreme Court decisions have demonstrated an increasing reluctance to automatically apply the rule. The Court now finds exclusion to be a remedy of last resort rather than a necessary consequence of constitutional violations.20 Where the Warren Court had found the rule to be “part and parcel” to the

Fourth Amendment21, the Court now agrees that the rule is merely a judicially created remedy.22 Over the

last three decades, the Court has crafted a series of exceptions to the rule which permit the use at trial of otherwise reliable evidence previously excluded under the rule, and has limited the forums at which the rule is applicable. In so doing, the Court focuses narrowly on the deterrence grounds of the rule, refusing to apply it where the costs of the rule outweigh the deterrent value.23 The costs referred to include the need to ignore otherwise reliable evidence and sometimes even releasing obviously guilty and potentially dangerous criminals. The largely speculative future deterrent benefit is often found lacking in comparison to the tangible immediate costs presented at trial. Still, the exclusion of evidence remains a regular issue in criminal cases.

1. Framing the Exclusionary Rule Debate:

Emphasis on the deterrence rationale for exclusion has made the cost/ benefit analysis central to the exclusionary rule debate, with critics arguing that turning a blind eye to the truth by excluding evidence is almost never justified. Defenders of the rule argue that the “costs” of the exclusionary rule are actually imposed by the Constitution itself and not the exclusionary rule remedy. Any effective enforcement of constitutional limits on police methodology will lead to the loss of some evidence; if not by exclusion, then by directly blocking the acquisition of that evidence.24 Critics of the rule counter that the exclusionary rule in fact excludes more than the constitution requires, such as when merely sloppy police work leads to technical violations excluding evidence that would have been lawfully discovered by other means. 25 Not surprisingly, these situations are precisely where the Court has now found exceptions to the exclusionary rule. Still, because the exclusionary rule, by definition, only operates when incriminating evidence has already been found as the result of an illegal search, and is in the hands of police, it is difficult to watch the guilty go free while being unable to conclusively prove that any constitutional violations were actually deterred by the exclusionary rule.

Attempting to make the benefits of the exclusionary rule more concretely apparent, defenders often point to empirical studies and anecdotal evidence which attempts to quantify changes in police behavior resulting from the rule. These studies show that evidence is in fact rarely excluded, and even more rarely are convictions entirely lost due to exclusion.26 Those cases that are lost tend to concern possession charges, where seized contraband is the determinative evidence, and are rarely violent crimes.27 Researchers have also shown drastic increases in requests for search warrants following the extension of the rule to the states, implying that police did begin conforming their behavior to the constitution after the remedy was introduced.28 Police training materials also began to reflect the increased importance of complying with constitutional limits on search and seizure.

Critics argue that such empirical data is difficult to accurately gather and more difficult to fully explain.29 Low suppression rates might only reflect that crooked police now also perjure themselves to appear in compliance with the constitution, or that judges apply the rule unevenly.30 It would be cynical however, to suggest that this outcome is somehow specific to the exclusionary rule, and unlikely to result

from any strict remedy. It does seem clear however, that whether or not the rule is an ideal remedy for constitutional violations, it has made police and civilians more aware of constitutional rights and has brought these issues to the forefront of law enforcement.

Another major point of contention in the exclusionary rule debate is that the rule only indirectly protects the innocent. Only the guilty find themselves in a position to avail themselves of the rule’s protection and thus receive an unjustified benefit while the truly innocent victims of an unlawful search must look for other remedies. The Supreme Court has already acknowledged however, that the rule is not an individual right, nor is it meant to repair the individual injury, crafted instead with an eye only towards deterring future violations.31 Still, that the rule is invoked by criminal defendants leads critics to argue that penalties against police officers would be a more appropriate remedy, providing similar deterrence to police misconduct, but also providing relief directly to the innocent victims. In recent cases, the Court has found that the availability of alternative tort and administrative remedies does justify reduced reliance on the exclusionary rule.32 Supporters of the rule however find that such remedies are not yet sufficiently viable as to create a real deterrence effect and that they would still result in a windfall to the guilty as police would be over-deterred by direct penalties and be less likely to perform any searches.

There is also the fundamental question of the rule’s efficacy as a deterrent. Critics argue that the rule’s impact at the trial phase is unlikely to impact police behavior on the street. Police are more concerned with arrests than convictions, so the rule punishes prosecutors more than police officers. The

focus on prosecutions also means that unlawful police conduct aimed at other goals, such as to confiscate contraband or merely to harass, would be totally uninfluenced by the rule. Violations by officers who already mistakenly believe that they are in compliance with the law also cannot be effectively deterred. Defenders of the rule argue that these criticisms miss the point of the rule, which is not concerned with the individual violation, but with systemic change raising awareness of the constitutional issues to promote compliance. While it is nearly impossible to prove that more violations would occur in the absence of the rule, its supporters point to the increased prevalence of constitutional law training material for police and the resulting improvements of police professionalism following the rule’s application to state governments. Ironically, this rise in police professionalism has in turn been cited as evidence that the rule is no longer necessary.33

II. What Evidence is Excluded: Reach and Limits on the Scope of Exclusion

Primary and Derivative Evidence (Fruits of the Poisonous Tree)

The exclusionary rule not only prohibits the use of that evidence which is actually seized during the course of an unlawful search or seizure, but also that which is obtained indirectly as a result of that search. 34 Any evidence which would have been obtainable as the result of a lawful search or seizure is considered primary evidence, while evidence acquired through the exploitation of information gained in the illegal search is called secondary or derivative. Derivative evidence tainted by a violation can include not only physical evidence, but also statements and confessions obtained through an illegal arrest, 35 testimony of witnesses whose identities were discovered in a search,36 and even the defendant’s own testimony if compelled by exploitation of the illegality. A drug cache found only as the result of a statement made by an unlawfully arrested suspect would therefore not be admissible as it arose only from exploitation of the illegal arrest. Were such evidence not excluded, it would undermine the rule’s deterrent value, because police might continue using illegal investigatory practices knowing they could ultimately lead to some admissible evidence.37 A rule limiting the gathering of evidence can only be effective if that evidence is not allowed for any purpose at all, neither in court as proof, nor as a means of acquiring more evidence.38 This exclusion of derivative evidence is commonly described as the ‘fruit of the poisonous tree doctrine.’39

While the prohibition of tainted derivative evidence was first formulated in the Fourth Amendment search and seizure context, it has come to be used in other exclusionary contexts as well. In the Sixth Amendment context, for example, a line-up identification procedure performed in the absence of counsel not only requires the exclusion of the identification, but also the exclusion of any subsequent in- court identification based on that line-up.40 In Kastigar v. United States, the Court held that Fifth Amendment protection against self-incrimination similarly prevents the derivative fruits of coerced testimony. 41 Fifth Amendment exclusion of secondary evidence is thus similar to that under the Fourth, but it is unclear if their scope is precisely the same. One notable exception is that the ban on tainted secondary evidence does not apply when the only violation was a technical failure to give Miranda warnings before a custodial interrogation. Because the Miranda warnings are a prophylactic measure meant to prevent the use of involuntary testimony, evidence arising from an otherwise voluntary statement need not be excluded.42

1. Attenuation

Not all tainted derivative evidence will be excluded, as some evidence discovered as the result of a constitutional violation is considered too remote or attenuated from the violation to justify exclusion. If, for example, a confession is separated from an illegal arrest by an intervening independent act of free will, the confession is considered sufficiently remote from the violation to be admitted. This is the case when an unlawfully arrested individual is released, but later voluntarily returns and confesses. 43 While receiving Miranda warnings prior to a confession is seen as a means of guaranteeing that statements made after will be voluntary, the mere reading of “Miranda warnings alone []cannot always make the [confession]sufficiently a product of free will to break []the causal connection between the illegality and the confession.”44 Other factors which may be useful in determining whether an act is sufficiently voluntary to break the connection include the length of time between the violation and confession, the presence of further intervening circumstances, and the purpose and flagrancy of the official misconduct.45 A categorical decision to include evidence seems to have been made as to statements made incident to arrests executed with appropriate probable cause but inside the suspect’s home as prohibited by the Fourth Amendment: statements later made outside the home are considered sufficiently attenuated from the illegal arrest.46

Testimony by witnesses identified through exploitation of a constitutional violation may also be admitted when shown to be separated from the unlawful behavior by the witness’s own free will. Unlike physical evidence which is simply found as the result of improper investigation, witnesses are independent actors capable of choosing to testify, or not, on their own volition.47 To determine whether a witness’s testimony should be excluded when the witness was discovered as the result of a violation, courts consider (1) the willingness of the witness to offer testimony, (2) the role or importance of the violation in identifying the witness, (3) the proximity of the violation to the issues of the case and to the witness’s willingness to testify and (4) police motivation in conducting the unlawful search.48

Another special situation arises when the accused confesses on several distinct occasions, because it can be difficult to determine if all the confessions are tainted by an initial constitutional violation. The Court has acknowledged that once a person has confessed to a crime for any reason, it becomes psychologically easier for them to do so again. Thus, when the initial confession is the product of unlawful conduct, any subsequent confessions are to some extent derivative of the first.49 The Court has rejected a blanket rule excluding all later confessions, and instead considers the way in which the first confession was unlawfully acquired. When the initial confession was inadmissible because it was involuntary as prohibited by the Fifth Amendment, the Court asks whether the forces that compelled the first confession also influenced the second.50 When the initial confession resulted from a Fourth Amendment violation such as unlawful arrest, the Court has considered instead whether the second confession was influenced by having made a prior confession. 51 The two inquiries, distinct due to the different grounds for exclusion under each Amendment, are similar in practice, both questioning the independence of the latter confession from prior misconduct.

Also, while evidence derived from technical Miranda violations need not be excluded, intentionally withholding the warnings to elicit an initial confession, then giving the warnings in an attempt to legitimize a subsequent repetition of the admission, is likely to result in the warnings being seen as ineffective under the circumstances so that the later confession will also be seen as involuntary and still be inadmissible.52 The average suspect is unlikely to appreciate the legal distinction between the two confessions, making him unable to knowingly waive his Miranda rights.

1. Good Faith Exception

When police investigate with the objectively reasonable, good faith belief that their actions are in compliance with legal requirements, the deterrence value of excluding evidence is seen to be low, and the evidence gained will be admissible. Thus, when a police officer acts in reasonable reliance on a warrant issued by an independent magistrate that is later found to be invalid as unsupported by probable cause, exclusion is unlikely to change police behavior in any way.53 The officer is already attempting to comply with the Fourth Amendment’s requirements. Reliance on a warrant would not be objectively reasonable, however, when the warrant was based on misrepresentations (or reckless statements) by law enforcement, when the magistrate had clearly abandoned his independent judicial role, when a warrant was facially deficient, or when the affidavit in support of the warrant was entirely lacking in support for a finding of probable cause. 54

Similarly, police reliance on a statute which is later found to be unconstitutional to execute an administrative search will not lead to exclusion.55 The deterrence value is too low in this situation to justify the costs of exclusion, as police cannot be expected to constantly question the constitutionality of the laws they enforce. Deterrence value is also low when the police rely on a court clerk’s erroneous assurance that a warrant exists in making an arrest. The violation results from the clerk’s mistake, not police indifference to the violation, and because clerk’s have no investment in the criminal trial’s outcome, they will not be deterred by its outcome.56

In a recent case, evidence has even been allowed when it was gathered in reliance on a mistake made by other police officers. 57 When other police officers mistakenly informed a neighboring county’s police force that an outstanding warrant existed, and a subsequent search discovered illegal drugs and weapons, the Court found the deterrence of excluding this evidence to be at a minimum. The poor recordkeeping that led to the mistake was merely negligent, not part of a pattern of misconduct, and done by a police force distant from the existing case and investigating officers. The investigating police’s conduct was not sufficiently culpable to merit exclusion, so exclusion was unlikely to deter this kind of mistake. The court has previously rejected requirements of bad faith for exclusion as needing too much speculation into the mental states of police officers, but it is unclear if requiring a mental state beyond negligence will result in just that.

2. The Independent Source Exception

Even that a fact was gained by exploitation of a culpable constitutional violation does not mean that it can never be used at court. If it can be shown that the fact can be proved by reliance on an “independent source” entirely unconnected with the violation, then it can be introduced as any other evidence.58 The classic example involves the exclusion of finger prints taken from a robbery suspect when he had been arrested without probable cause in violation of the Fourth Amendment. The government was allowed to admit an earlier set of fingerprints taken before the illegal arrest (in an unrelated matter), because they were not derived from exploitation of the unlawful arrest. 59 There is no reason to exclude evidence wholly unrelated to the constitutional violation just because the illegal practice uncovered the same evidence.

Later cases have considered exactly how separate from the violation an “independent” source must be for evidence to be admissible under this doctrine. In Segura v. United States, police illegally entered a location without a warrant, and remained present to secure the premises while other officers obtained a search warrant based on information known before the illegal entry.60 At trial, the defendant sought to exclude evidence which was not discovered or seen during the earlier, illegal entry, but was discovered in a second search conducted under the valid warrant. The Court held that although the police’s illegal presence between searches might have protected evidence from destruction until the legal search occurred, the search under the warrant was still an independent lawful source, distinct from the constitutional violation.

In Murray v. United States, police who had the requisite probable cause to obtain a search warrant, illegally entered a site without a warrant anyway, and discovered the contraband they had suspected would be present.61 Leaving the scene untouched, they then acquired a search warrant to seize the contraband, based entirely on information known before the illegal entry and with no mention of the illegal entry. They then executed the warrant and seized the contraband they knew would be there. The Court held that the seized evidence was admissible, so long as the search under the warrant was also not motivated by information learned during the illegal search. In this case, the decision to get a warrant and conduct a legal search was seen to be independent from and not motivated by the illegal search.

1. The Inevitable Discovery Exception-

A separate exception allows the admission of tainted evidence that would “inevitably” have been discovered by police in the absence of an established constitutional violation. Where the ‘independent source’ exception considers whether police also acquired evidence from an untainted source despite illegal behavior, the ‘inevitable discovery’ exception asks what might have happened in the absence of any illegal behavior. If the prosecution can show by a preponderance of the evidence that the information ultimately would have been discovered by lawful means (had no misconduct occurred removing it), then the evidence is outside of the exclusionary rule. This exception is also based on the deterrence rationale, in that deterrence is achieved by relieving police of any undue benefit resulting from impermissible procedures. To exclude evidence which would ultimately have been lawfully discovered anyway, would put police in a worse position than they were in before the unlawful conduct, which is more than the rule requires and a higher cost than can be reasonably born.62

To avoid the ‘inevitable discovery’ exception becoming so large as to devour the rule, and to focus the inquiry only on “historical facts capable of ready verification” rather than mere hypotheticals, 63 some lower courts have required that an investigation which would lawfully discover the evidence already be in progress when the illegal conduct occurred.64 This rule fits the facts of the seminal case of Nix v. Williams where an unconstitutionally obtained confession led to the discovery of a murder victim’s body which would soon have been discovered by search efforts in the area.65

A recent Supreme Court case however, has relied in part on what appears to be a more expansive version of the exception. In Hudson v. Michigan66, police executing a valid search warrant failed to properly knock and announce their presence before forcibly entering a home. In allowing the admission of drugs seized within the home, the Court found that the contraband would have been discovered anyway. If the police had not failed to properly announce, the warrant could have been lawfully executed. The opinion has been understandably controversial, and it is still unclear the impact it will have in other contexts.

3. Use Outside the Criminal Setting

The Court has also found that the deterrence value of exclusion is low when evidence is used in forums other than criminal trials. For example, an indictment by a grand jury cannot be challenged on the basis that evidence introduced was unconstitutionally acquired,67 nor can a witness at a grand jury hearing refuse to answer questions concerning evidence premised on an illegal search.68 The ensuing criminal trial is seen as affording ample opportunity for an indicted defendant to challenge evidence, and this is sufficient to deter police misconduct.69 The deterrence value of exclusion at parole hearings is also seen as insufficient to overcome evidentiary costs, because police are generally more concerned with gathering

evidence for use at criminal trials, subject to the rule, than to such administrative hearings and will

therefore not be additionally deterred by the exclusion.70 Parole officers, who might be more invested in a given hearing, are sufficiently deterred from illegality by the threat of disciplinary hearings and damages actions.71 Deterrence at deportation hearings is also seen as too low to justify exclusion despite the direct incentive for immigration officers to violate rights in gaining evidence to press their case. This is in part because asking the court to ignore evidence of an ongoing crime (illegal presence), unacceptably increases the cost of the rule. 72 Finally, exclusion is also inapplicable to a civil tax proceeding, despite its quasi-criminal nature, based on the broader belief that exclusion at criminal court is generally sufficient deterrent to modify police behavior without further expansion of the rule. 73

1. Use at Criminal Trial for a Purpose other than Conviction (Impeachment)-

The Court has also found that evidence banned from use in the government’s case-in-chief may still be admissible for collateral purposes such as impeachment. Testimony excluded from a previous trial could thus be used in a later, unrelated trial to contradict the defendant’s testimony, if considered only as to the issue of the defendant’s credibility.74 The Court has reasoned that a criminal should not be able to use the exclusionary rule as a shield which allows him to securely perjure himself.

Even evidence more directly related to the crime at trial, or gathered in the same investigation, may be admissible for this purpose when the defendant perjures himself.75 A defendant must be able to refute the elements of the instant crime without opening the door to admission of illegally acquired evidence, but such evidence can permissibly be used to refute defendant’s affirmative use of untruths.76 If the government wishes to use illegally acquired evidence to impeach testimony offered in response to its own cross-examination questions, however, the questions must have been reasonably suggested by direct examination testimony, and not merely a vehicle to for opening the door to the banned evidence.77

Generally, impeachment use is permissible regardless of whether the evidence was initially banned as the result of a Miranda violation or a Fourth Amendment search or seizure. 78 The danger that investigators would use illegal practices for the limited purpose of gathering impeachment evidence is slight and the deterrent value of the Fourth Amendment or Miranda rules is not strongly compromised by such use.79 When the proposed impeachment evidence is an involuntary confession, however, and not just a Miranda violation, the confession may still be excluded because of its inherent untrustworthiness and the Fifth Amendment’s direct proscription against coerced testimony. 80 Statements gathered in violation of the accused’s Sixth Amendment right to counsel, however, are not necessarily compelled, and if proven voluntary might be admissible for the purpose of impeachment.81

Where the government seeks to use unlawfully acquired evidence to impeach someone other than the defendant, they will generally not be allowed. The Court has found that while this would have little benefit to truth-seeking on the primary issues of the case, it would open the door very wide for the admission of otherwise banned evidence.82 The deterrence value of the exclusionary rule would be reduced as police learned that excluded evidence could often be admissible for other purposes, and at the same time, defendants themselves might be deterred from presenting witnesses in their defense out of fear that an impeachment opportunity might arise.

1. Standing

Standing refers to the constitutional requirement that government action can be challenged as unconstitutional only by those with a sufficient interest in the challenged action.83 In the context of the exclusionary rule, only a person who has suffered an injury to his personal rights can challenge evidence arising from it.84 This means that there is no standing to challenge evidence gathered in violation of a third party’s rights. This may be true even when the unlawful conduct was targeted to gain evidence for use against the defendant. 85

Since the Court clarified that standing is established only when the defendant proves that he has personally suffered a constitutional violation, the standing inquiry is really one and the same as the consideration of whether there has been a relevant constitutional violation.86 The standing issue becomes critical, however, in the prosecution of those who worked with criminal confederates. While a court might hold that all the evidence in a case was illegally gathered, it is possible that no one defendant will have standing to challenge all the searches at his trial. Suspect B then, might not have standing to challenge an incriminatory involuntary confession taken from suspect A, so that A’s confession would be admissible at B’s trial.

In the case of Fifth and Sixth Amendment violations, it is always clear whose personal rights have been violated. The nature of the injury, compelled testimony or lack of counsel, makes it clear who the aggrieved party is. In the case of a Fourth Amendment search or seizure violation, however, it can be more difficult to determine whose rights were violated by a given search or seizure. More than one person’s rights might be violated in the course of a single search. In this setting, the Supreme Court requires a showing that the evidence was gathered in violation of the defendant’s own legitimate expectation of privacy as to the location searched.87 Because the Court has found that an expectation of

privacy is legitimate if society recognizes it as reasonable,88 the inquiry is always very fact specific to the person and premises. This standard is a constitutionally required minimum, but states are welcome to extend standing more widely. New Jersey for example, allows challenges by all parties with even a ‘participatory interest’ in seized property. 89

Legitimate expectations of privacy (and thus standing to challenge government searches and seizures) fall into three broad interest types: (1) Possessory interest in the premises searched, (2) Legitimate presence at the site during the search, (3) Possessory interests in the items seized. Having such an interest in property or a location is not a guarantee of absolute privacy, however, and the nature of the interest shapes what privacy might be expected. A casual passenger in a friend’s car, for example, could not be said to have an expectation of privacy in the contents of the car’s glove compartment (which casual passengers rarely access) though they might have such an expectation as to the cabin area. 90

The owner or lessee of a house has an expectation of privacy in that location. This is true even if he is not present when a search is conducted. 91 The use of the area need not be exclusive, so defendants are considered to have a privacy interest in hotel rooms,92 and common office space as well.93 When possession is shared, there cannot be a privacy interest in areas that are under the exclusive dominion of another person such as the private bedrooms of housemates. 94

Persons legitimately on site at the time of a search also have some privacy expectations as to the premises. Most famously, this includes overnight house guests who expect that while hosts might admit others, they will generally act to safeguard the privacy of their guests.95More casual social guests, who are not staying overnight, might not reasonably enjoy such privacy expectations, depending on the duration

and nature of their visit and their relationship with the household. 96 Privacy expectations based on presence at commercial premises or for commercial purposes are less than the expectation for social calls to a residence.97

Ownership of seized property is not alone sufficient to create a protected privacy interest in that property. 98 The location of the search must also always be considered in determining whether the defendant has standing to challenge a seizure. If the accused quickly stashed his drug contraband into a casual acquaintance’s bags, for example, he would not have standing to object to the search of the bag and seizure of the drugs.99 To show standing, he would need to prove that he had free access to the bags or the right to exclude others from the bags. Similarly, letters once mailed, may no longer afford the sender any expectation of privacy as it is expected they will become the recipients’ property and out of the sender’s control.100

III. How the Exclusionary Rule is Invoked: Procedural Considerations

While much of the exclusionary rule’s substance is determined by the Constitution and thus standardized across the entire nation, the procedure for raising objections to evidence varies considerably from state to state and in the federal courts. The Constitution mandates some procedural requirements as well, but the states have become active laboratories for experimenting with different procedural policies. Different choices as to the timing of objections and standards of proof required reflect different priorities in the delicate balance between judicial efficiency, protection of defendants’ rights and police power.

1. Motions to Suppress

1. Timing

When the government seeks to introduce evidence into trial which the defendant believes to be unlawfully obtained, the issue of exclusion is raised by defendant’s motion to suppress. 101 In the federal court system this must be a pretrial motion, and a failure to raise the issue before trial will be considered a waiver of the issue absent special justification. 102 This keeps the trial focused on the single issue of guilt, and encourages the parties to reach a plea agreement by arming them with a full understanding of what evidence will be available at trial.

If the defendant raises the issue of exclusion only at trial, federal courts have discretion as to whether to hear the motion. This allowance benefits those defendants who couldn’t have known that there were grounds for excluding the evidence until trial. Once the court elects not to hear a motion made at trial, the defendant may challenge the denial on appeal but must show that the court abused its discretion in the denial and that substantial prejudice resulted. The availability and timing of appeals is discussed further below.

While many states follow the federal rules, there is some variation in state laws as to when a motion to suppress must be made. There are state laws that are more lax than the federal rules, requiring only that the objection be made before, or simultaneously with, the government’s offering of the challenged evidence.103 There are also those, however, that limit judicial discretion by putting strict time

limits on how many days before trial the motion must be filed.104 Some states have even drafted statutory

exceptions to timeliness requirements, going so far as to identify specific situations in which a motion made only at trial must be heard or enumerating factors to be considered in deciding whether to consider a late motion.105 These timing changes reflect the need to balance judicial resources, be fair to the parties, and fully hear the important constitutional issue.

1. Showing and Burden

The Federal Rules require that a motion to suppress be particular in stating the relief sought and the reasons why it should be granted. The motion must clearly identify what evidence is being challenged and the legal grounds on which it should be excluded. This means that the motion should assert a specific legal theory for exclusion, such as seizure without a warrant, and in most jurisdictions, should specifically allege facts which support this theory. The facts presented, if taken as truth, must require exclusion. These proofs may be made through attached sworn affidavits. While all information included with the motion must be definite and non-conjectural so that a court can conclude that a hearing is warranted, affidavits based solely on “information and belief” are acceptable so long as they provide sources and basis for these beliefs.

A sufficient motion to suppress will initiate a suppression hearing. This is almost always a pre- trial hearing as the defendant must know in advance what evidence will be presented against him at trial in order to formulate his defense, decide whether he will testify, and consider entering a guilty plea.

Federal judges may refer the suppression hearing to a magistrate, but must personally make the final determination as to exclusion, and hold a second hearing if they wish to reverse the magistrate’s recommendations. The limited scope of the hearing also allows for a relaxation of the rules of evidence, and the judge has increased discretion to permit all relevant evidence, even that which is impermissible under normal evidentiary rules.106

The Supreme Court has recognized that an accused challenging evidence must be free to testify without fear that testimony provided in support of the challenge will later be used against him on the issue of guilt. 107If the government were allowed to use such testimony against the defendant at trial, it would substantially discourage such challenges, and leave the constitutional issues un-litigated. Consider the difficult dilemma that would otherwise face a person accused of drug possession who hopes challenge the

admission of illegally seized contraband into evidence: to assert standing, he would need to allege an interest in the contraband, but to do so would mean admitting the key element of the crime. Similarly, the prosecution cannot use the evidentiary hearing as a chance to cross-exam the defendant on unrelated issues in the hopes of gathering more evidence.108 The defendant’s testimony, however, may still be

admissible at trial for impeachment purposes.109

Burden of proof

Generally, the burden as to the issues of standing and of the existence of a constitutional violation are on the defendant, as the party seeking exclusion, and satisfied by a sufficient motion to suppress. The assignment of the burden for other issues, however, varies depending on the nature of the alleged violation, and in turn the grounds for exclusion. That a confession was voluntary, 110 given after a

knowing waiver of Miranda rights,111 or that a defendant waived his right to counsel, for example, must

always be proven by the prosecution if challenged. Undue bias in an identification procedure, however, usually must be proven by the defense. States reserve the right to place the burdens on the prosecution in all issues. 112

In the Fourth Amendment search and seizure context, the allocation of the burden depends on whether police acted with or without a warrant. If the police searched without a warrant, then the prosecution bears the burden to prove by a preponderance of the evidence, that the search or seizure was lawful under an exception to the general warrant requirement.113 If the government argues that the search

was consented to, it also bears the burden of proving consent. 114 Searches made under the authority of a

warrant are presumed to be lawful. The warrant, issued by a magistrate, is a testament to the fact that police have already made a showing of probable cause to an impartial tribunal. As a result, once the warrant is presented, the defendant bears the difficult burden of proving that the warrant is invalid or did not cover the search, and that the search was unconstitutional. Should the defendant succeed in making his proofs, the character of the hearing again resembles that in which police acted without a warrant. The burden is again on the prosecution to show that the search was permissible. If the government seeks to admit evidence despite a constitutional violation under the independent source or inevitable discovery exceptions, the burdens of production and persuasion will both rest with the prosecution to show that the exception applies. 115

Standard of Proof

As discussed above, the preponderance of the evidence standard is generally the standard the government must meet to defeat a defendant’s motion to suppress evidence when the motion concerns the voluntariness of a confession116, a waiver of Miranda rights117, consent to a warrantless search118, or evidence under the inevitable discovery exception. 119 While this standard satisfies Constitutional requirements, states are still able to impose higher standards if they so choose.120 The standard of proof required of the defendant as to searches conducted under a warrant and bias in an identification procedure is less often directly discussed, but is generally also met by the preponderance standard.121 Defendant’s claims that police perjured themselves, or were reckless as to the truth, in obtaining a search warrant must meet this standard as well. 122

Franks Hearing

Usually, a defendant may only challenge the validity of a search under the warrant as written, but a defendant may also contest the validity of a police search warrant based on misrepresentations in gaining the warrant. In Franks v. Delaware123 the Court held that the Fourth Amendment requires that a

hearing be held on this issue, now commonly referred to as a “Franks Hearing.” To initiate such a hearing, the defendant must make a substantial preliminary showing that the warrant was critically based on either deliberately false statements or statements made with a reckless disregard as to their truth. If at the hearing, the defendant can prove his allegations by a preponderance of the evidence, and the remaining basis for the warrant is insufficient to support probable cause, the warrant will be voided, and evidence tainted by the search excluded. Some courts have held that deliberate omissions meant to mislead or made with reckless disregard for the truth can also be the basis for a Franks hearing. 124

Appeal

Once the court has decided on the defendant’s motion to suppress, the federal rules, and some states, allow for an immediate interlocutory appeal on the issue by the government only. 125 Other states however allow such appeals by either party, or by neither party absent a showing of new evidence being available.126 After trial, a convicted defendant, who has not waived the suppression issue, can seek review. In considering such appeals, some state courts will consider only the evidence present during the suppression hearing, but the federal rules permit the appellate court to consider trial evidence as well. 127

The review of a denial of a motion to suppress is generally considered in the light most favorable to the government.128 The denial will only be reversed if it shown to be completely erroneous, or not

supported by substantial evidence on the record.129 The decision is one of both law and fact, and the appellate court defers to the trial courts assessment factual issues remanding if the record is incomplete.130 The legal issues, however, are subject to de novo review during the appeal.131

Even if the denial of suppression is found on appeal to have been error, the conviction will not be overturned if the error did not affect the defendant’s substantial rights, but was only harmless error. A reversal will only occur when there is a reasonable possibility that the evidence complained of might have contributed to the conviction.132 The government bears the heavy burden of showing that the error was

harmless beyond a reasonable doubt.133 In considering whether there was harmless error, courts will

consider the degree to which the challenged evidence impacted the jury and thus the verdict and the existence of other evidence presented on the same issue. If there was overwhelming additional evidence of guilt presented at trial, the admission was likely harmless error.134

Traditionally, a defendant who pleads guilty also waives his right to challenge the constitutionality of evidence. As the conviction is based upon the plea, not the evidence, there is no reason to permit collateral challenges to the conviction on the grounds of illegal police investigatory practice. Some states and federal courts however have recognized that this forces a defendant who has lost a suppression motion to go to trial in order to avoid losing his right to appeal the suppression issue. At the state level, one solution to this problem is statutory authorization preserving such appeals. State and federal courts are split as to whether the court may authorize an agreement between government and defendant which states that the defendant will plead guilty but expressly reserve the right to challenge the evidentiary issue.

1 Drafted by Jeremy Daum and commented and revised by New York University School of Law, U.S. – Asia Law

Institute team 2009



2 Coolidge v. New Hampshire, 403 U.S. 443, 497‐99 (1971). (Black, J., concurring and dissenting)

3 Dickerson v. United States, 530 U.S. 428, 437‐444 (2000). 4 United States v. Patane, 542 U.S. 630, 639‐40 (2004)

5 Brewer v. Williams, 430 U.S. 387, 398 (1977).

6 Massiah v. United States, 377 U.S. 201, 206 (2004.)

7 United States v. Wade, 388 U.S. 218 (1967).

8 Massiah at 206

9 Gilbert v. California, 388 U.S. 263, 273 (1951) 10 Moore v. Illinois, 434 U.S. 220, 227 (1977) 11 Rochin v. California, 342 U.S. 165, 173 (1952)

12 Colorado v. Connelly, 479 U.S. 157, 167 (1986)

13 Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920)

14 Stone v. Powell, 428 U.S. 465, 485 (1976) 15 Id. at 492

16 Corley v. United States, 129 S.Ct. 1558,(2009).

17 Ibid.

18 Marbury v.Madison, 5. U.S. 137 (1803)

19 Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833(1992

20 Herring v. United States, 129 S.Ct. 695, 700 (2009). 21 Mapp v. Ohio, 367 U.S. 643 (1961).

22 Herring, 129 S.Ct at 700 (2009).

23 Id.

24 See e.g. Wayne LaFave, 1 Search and Seizure S 1.2, at 25‐27 (3rd. edition 1996). 25 See e.g. Donald Dripps, Living with Leon, 95 Yale L.J. 906, 919(1986).

26 See e.g. Report of the Comptroller Gen., Impact of the Exclusionary Rule on Federal Criminal Prosecutions, Rep.

CDG‐79‐75 (1979)

27 See e.g. Tracey Maclin, When the Cure for the Fourth Amendment is Worse than the Disease, S. Cal. L. Rev. 1, 44

(1994)

28 See Bradley C. Cannon, Is the Exclusionary Rule in Failing Health? Some New Data and a Plea against a

Precipitous Conclusion, 62 KY. L.J. 681, 708‐811 (1974).

29 See Albert W. Alschuler, Studying the Exclusionary Rule: An Empirical Classic, 75 U. Chi. L. Rev. 1365 (2008) 3

0 See Christopher Slobogin, Testilying: Police Perjury and What to do About It, 67 U. Colo. L. Rev. 1037 (1996) 31 Elkins v. United States, 364 U.S. 206, 217 (1960)

32 Hudson v. Michigan, 547 U.S. 586, 597‐99 (2006)

33 Id. at 599, Citing S. Walker, Taming the System: The Control of Discretion in Criminal Justice 1950‐1990 51 (1993)

34 Wong Sun V.v. United States, 371 U.S. 471, 484‐86 (1963)

35Brown v. Illinois, 422 U.S. 590, 601 (1975)

36 United States v. Ceccolini, 435 U.S. 268 (1978)

37 Nardone v. United States, 308 U.S. 338, 340 (1939)

38 Silverthorne Lumber Co. v. United States, 251 U.S. 385, 391‐92 (1920) 39 Nardone, 308 U.S. at 341

40 United States v. Wade, 388 U.S. 218, 239‐40 (1967) 41 406 U.S. 441, 449‐51(1972)

42 United States v. Patane, 542 U.S. 630, 639 (2004)

43 Wong Su, , 371 U.S. at 91 44 Brown, 422 U.S. at 603 45 Id. at 603

46 New York v. Harris, 495 U.S. 14, 18 (1990) 47 Ceccolini, 435 U.S. at 277

49 United States v. Bayer, 331 U.S. 532, 541‐42(1947)

50 See e.g. Darwin v. Connecticut, 391 U.S. 346, 349(1968) 51 Brown, 422 U.S. at 605

52 Missouri v. Seibert, 542 U.S. 600, 612‐14 (2004)

53 United States v. Leon, 468 U.S. 897， 916‐17 (1984)

54 Id. at 914‐915

55 Illinois v. Krull, 480 U.S. 340, 349 (1987)

56 Arizona v. Evans, 514 U.S. 1, 14(1995)

57 Herring v. United States, 129 S.Ct. 695, 703(2009)

58 Silverthorne Lumber Co. v. United States, , 251 U.S. 385, 392(1920)

59 United States v. Crews, 445 U.S. 463, 467 (1990) citing Bynum v. United States, 274 f.d2 767 (D.C.Cir.1960)

60 468 U.S. 796 (1984)

61 Murray v. United States, 487 U.S. 533 (1988)

62 Nix v. Williams, 467 U.S. 431, 443 (1984)

63 Id. at 444 n. 5

64 See United States v. Zavala, 541 F.3d 562, 580 (5th Cir, 2008) 65 Nix, 467 U.S. 431

66 547 U.S. 586, 600 (2006)

67 Costello v. United States, 350 U.S. 359, 408 (1956)

68 United States v. Calandra, 414 U.S. 338, 349‐352 (1974)

69 United States v. Blue, 384 U.S. 251, 255 (1966)

70 Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 364 (1998) 71 Id. at 368

72 INS v. Lopez‐Mendoza, 468 U.S. 1032, 1046 (1984)

73 United States v. Janis, 428 U.S. 448, 454 (1976) 74 Walder v. United States, 347 U.S. 62, 65 (1957) 75 Harris v. New York,401 U.S. 222, 225 (1971)

76 Walder, 347 U.S. at 65

77 United States v. Havens, 446 U.S. 620, 631(1980) 78 See e.g., Harris, 401 U.S. 222

79 Id. at 225

80 Mincey v. Arizona, 437 U.S. 385, 397‐402 (1978) 81 Michigan v. Harvey, 494 U.S. 344, (1990)

82 James v. Illinois, 493 U.S. 307, 314 (1990)

83 Baker v. Carr, 369 U.S. 186, 204‐08 (1962)

84 Rakas v. Illinois, 439 U.S. 128, 133‐135 (1978)

85 Id. At 136-37

86 Id. at 140 87 Id. at 143

88 Minnesota v. Olson, 495 U.S. 91, 96 (1990)

89 State v. Johnson, 193 N.J. 528, 547 (NJ S.Ct. 2008)

90 Rakas, 439 U.S. at 148‐49

91 Alderman v. United States, 394 U.S. 165, 176 (1969)

92 See e.g. Stoner v. State of California, 376 U.S. 483 (1964) 93 See e.g. Mancusi v. Deforte, 392 U.S. 364 (1968)

94 See e.g. Northern v. United States, 455 F.2d 427, 430 (C.A.9 1972) 95 Minnesota v. Olson, 495 U.S. 91, 98 (1990)

96 Minnesota v. Carter, 525 U.S. 83, 89‐90 (1998) 97 Id. at 90

98 Rawlings v. Kentucky, 448 U.S. 98, 105 (1980) 99 Id.

100 United States v. King, 55 F.3d 1193, 1996 (6th Cir. 1995)

2 Coolidge v. New Hampshire, 403 U.S. 443, 497‐99 (1971). (Black, J., concurring and dissenting)

3 Dickerson v. United States, 530 U.S. 428, 437‐444 (2000). 4 United States v. Patane, 542 U.S. 630, 639‐40 (2004)

5 Brewer v. Williams, 430 U.S. 387, 398 (1977).

6 Massiah v. United States, 377 U.S. 201, 206 (2004.)

7 United States v. Wade, 388 U.S. 218 (1967).

8 Massiah at 206

9 Gilbert v. California, 388 U.S. 263, 273 (1951) 10 Moore v. Illinois, 434 U.S. 220, 227 (1977) 11 Rochin v. California, 342 U.S. 165, 173 (1952)

12 Colorado v. Connelly, 479 U.S. 157, 167 (1986)

13 Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920)

14 Stone v. Powell, 428 U.S. 465, 485 (1976) 15 Id. at 492

16 Corley v. United States, 129 S.Ct. 1558,(2009).

17 Ibid.

18 Marbury v.Madison, 5. U.S. 137 (1803)

19 Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833(1992

20 Herring v. United States, 129 S.Ct. 695, 700 (2009). 21 Mapp v. Ohio, 367 U.S. 643 (1961).

22 Herring, 129 S.Ct at 700 (2009).

23 Id.

24 See e.g. Wayne LaFave, 1 Search and Seizure S 1.2, at 25‐27 (3rd. edition 1996). 25 See e.g. Donald Dripps, Living with Leon, 95 Yale L.J. 906, 919(1986).

26 See e.g. Report of the Comptroller Gen., Impact of the Exclusionary Rule on Federal Criminal Prosecutions, Rep.

CDG‐79‐75 (1979)

27 See e.g. Tracey Maclin, When the Cure for the Fourth Amendment is Worse than the Disease, S. Cal. L. Rev. 1, 44

(1994)

28 See Bradley C. Cannon, Is the Exclusionary Rule in Failing Health? Some New Data and a Plea against a

Precipitous Conclusion, 62 KY. L.J. 681, 708‐811 (1974).

29 See Albert W. Alschuler, Studying the Exclusionary Rule: An Empirical Classic, 75 U. Chi. L. Rev. 1365 (2008) 3

0 See Christopher Slobogin, Testilying: Police Perjury and What to do About It, 67 U. Colo. L. Rev. 1037 (1996) 31 Elkins v. United States, 364 U.S. 206, 217 (1960)

32 Hudson v. Michigan, 547 U.S. 586, 597‐99 (2006)

33 Id. at 599, Citing S. Walker, Taming the System: The Control of Discretion in Criminal Justice 1950‐1990 51 (1993)

34 Wong Sun V.v. United States, 371 U.S. 471, 484‐86 (1963)

35Brown v. Illinois, 422 U.S. 590, 601 (1975)

36 United States v. Ceccolini, 435 U.S. 268 (1978)

37 Nardone v. United States, 308 U.S. 338, 340 (1939)

38 Silverthorne Lumber Co. v. United States, 251 U.S. 385, 391‐92 (1920) 39 Nardone, 308 U.S. at 341

40 United States v. Wade, 388 U.S. 218, 239‐40 (1967) 41 406 U.S. 441, 449‐51(1972)

42 United States v. Patane, 542 U.S. 630, 639 (2004)

43 Wong Su, , 371 U.S. at 91 44 Brown, 422 U.S. at 603 45 Id. at 603

46 New York v. Harris, 495 U.S. 14, 18 (1990) 47 Ceccolini, 435 U.S. at 277

49 United States v. Bayer, 331 U.S. 532, 541‐42(1947)

50 See e.g. Darwin v. Connecticut, 391 U.S. 346, 349(1968) 51 Brown, 422 U.S. at 605

52 Missouri v. Seibert, 542 U.S. 600, 612‐14 (2004)

53 United States v. Leon, 468 U.S. 897， 916‐17 (1984)

54 Id. at 914‐915

55 Illinois v. Krull, 480 U.S. 340, 349 (1987)

56 Arizona v. Evans, 514 U.S. 1, 14(1995)

57 Herring v. United States, 129 S.Ct. 695, 703(2009)

58 Silverthorne Lumber Co. v. United States, , 251 U.S. 385, 392(1920)

59 United States v. Crews, 445 U.S. 463, 467 (1990) citing Bynum v. United States, 274 f.d2 767 (D.C.Cir.1960)

60 468 U.S. 796 (1984)

61 Murray v. United States, 487 U.S. 533 (1988)

62 Nix v. Williams, 467 U.S. 431, 443 (1984)

63 Id. at 444 n. 5

64 See United States v. Zavala, 541 F.3d 562, 580 (5th Cir, 2008) 65 Nix, 467 U.S. 431

66 547 U.S. 586, 600 (2006)

67 Costello v. United States, 350 U.S. 359, 408 (1956)

68 United States v. Calandra, 414 U.S. 338, 349‐352 (1974)

69 United States v. Blue, 384 U.S. 251, 255 (1966)

70 Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 364 (1998) 71 Id. at 368

72 INS v. Lopez‐Mendoza, 468 U.S. 1032, 1046 (1984)

73 United States v. Janis, 428 U.S. 448, 454 (1976) 74 Walder v. United States, 347 U.S. 62, 65 (1957) 75 Harris v. New York,401 U.S. 222, 225 (1971)

76 Walder, 347 U.S. at 65

77 United States v. Havens, 446 U.S. 620, 631(1980) 78 See e.g., Harris, 401 U.S. 222

79 Id. at 225

80 Mincey v. Arizona, 437 U.S. 385, 397‐402 (1978) 81 Michigan v. Harvey, 494 U.S. 344, (1990)

82 James v. Illinois, 493 U.S. 307, 314 (1990)

83 Baker v. Carr, 369 U.S. 186, 204‐08 (1962)

84 Rakas v. Illinois, 439 U.S. 128, 133‐135 (1978)

85 Id. At 136-37

86 Id. at 140 87 Id. at 143

88 Minnesota v. Olson, 495 U.S. 91, 96 (1990)

89 State v. Johnson, 193 N.J. 528, 547 (NJ S.Ct. 2008)

90 Rakas, 439 U.S. at 148‐49

91 Alderman v. United States, 394 U.S. 165, 176 (1969)

92 See e.g. Stoner v. State of California, 376 U.S. 483 (1964) 93 See e.g. Mancusi v. Deforte, 392 U.S. 364 (1968)

94 See e.g. Northern v. United States, 455 F.2d 427, 430 (C.A.9 1972) 95 Minnesota v. Olson, 495 U.S. 91, 98 (1990)

96 Minnesota v. Carter, 525 U.S. 83, 89‐90 (1998) 97 Id. at 90

98 Rawlings v. Kentucky, 448 U.S. 98, 105 (1980) 99 Id.

100 United States v. King, 55 F.3d 1193, 1996 (6th Cir. 1995)

101 Fed. R. Crim. P. 12(b)(3)(C); Fed. R. Crim. P. 41(h)

102 Fed. R. Crim. P. 12(e)

103 See e.g. Nelson v. State, 626 S.W.2d 535 (Tex. Crim. App. 1981)

104 See e.g. N.Y. Crim. Proc. Law §255.20(1) (must be filed within 45 days of arraignment)

105 See e.g. Cal. Penal Code § 1538.5(h). (motion made at trial because defendant was unaware of grounds pre‐trial,

motion must be entertained)

106 United States v. Matlock, 415 U.S. 164, (1994); Fed. Rule Crim. Proc. 104(a). 107 Simmons v. United States, 390 U.S. 377, 390‐91 (1968).

108 Fed. R. Crim. Proc. 104(d).

109 United States v. Salvucci, 448 U.S. 83 (1980). 110 Lego v. Twomey 404 U.S. 477 (1972)

111 Miranda v. Arizona, 384 U.S. 436 (1966).

112 Ariz. Rules Crim. Proc §16.2(b)‐ placing the burden on the prosecution) 113 U.S. v. Pearson, 448 F.2d 1207 (5th Cir. 1971)

114 Bumper v. North Carolina, 391 U.S. 543 (1968)

115 See e.g. Nix v. Williams, 467 U.S. 431 (1984). 116 Lego v. Twomey, 404 U.S. 477, 482‐89 (1972).

117 Colorado v. Connelly, 479 U.S. 157 (1986).

118 United States v. Matlock, 415 U.S. 164, 177 n. 14 (1974) 119 Nix v. Williams 467 U.S. 431, 444

120 Lego v Twomey, 404 U.S. at 489.

121 See United States v. Guerrero‐Barajas, 240 F.3d 428, 432 (5th Cir. Tex. 2001) (requiring preponderance of the evidence to prove a constitutional violation); Wayne R. LaFave, Jerold H. Israel & Nancy J. King, Criminal Procedure,

• 10.4(d)(3rd edition 2000).

122 Franks v. Delaware, 438 U.S. 154, 156 (U.S. 1978)

123 Franks v. Delaware, 438 U.S. 154 (1978).

124 See e.g. United States v. Reivich, 793 F.2d 957, 961 (8th Cir. 1986) 125 18 U.S.C. §§3731,2518(10)(b).

126 Cal. Penal Code §1583.5(j)(allowing appeals by either party)); Pa. R. Crim. P. 581(J)(forbidding appeals by either

party unless new evidence is discovered).

127 See e.g. U.S. v. Alvarez‐Becerra, 33 Fed.Appx. 403 (10th Cir. 2002)(trial evidence accepted); State v. Gora, 148

N.J. Super. 582 (App. Div. 1977)(trial evidence barred at appeal).

128 United States v. Oates, 560 F.2d 45, 49 (2nd Cir. 1977).

129 United States v. Patterson ,292 F.3d 615 (9th Cir. 2002); United States vs. Jobin, 535 F.2d 154 (1st Cir. 1976)

130 Patterson (2002)

131 United States v. Holloway, 290 F.3d 1331 (11th Cir. 1976) 132 Fed. R. Crim. P. 52(a)

133 Chapman v. California, 386 U.S. 18 (1972)

134 United States v. Rhind, 289 F.3d 690 (11th Cir. 2002)