Admissibility of Illegally Obtained Evidence: American and Foreign Approaches Compared, The

• Author: by Captain Stephen J. Kaczynski
• Pages: 02

1. INTRODUCTION

   The American exclusionary rule is nearly a septugenarian. Born in 1914.' the rule that excludes illegally obtained, yet relevant and probative, evidence from admission at a criminal trial has been much criticized and occasionally limited, yet it remains today the law aftheland. Anattempttajudiciallymodifytheexclusionaryrulewas recently avoided by the United States Supreme Court? but may

   Editor. klitary Lou Rmsa The judge Advocate General's School, Charlotiesvrlle. Virginia 1983 to prerenr. Formerls. Editor The Amcy Lawyer. 1983-85:

   Defsnie

   Counsel. U S. Army Trial Ddenie Service, Harari Field Office 1981.82 Trial Cam. %el and Assistant Chief oi Military Justice. Office 01 the Staff Judge Adweate 26th

   Statute, 51 St. John's L. Rev. 202 (1976): "[Did W7ol'''me Delense ollnioluntary hlortratton. The A m y Lawyer, Apr 1983, at 1, Inmifoblr heaoery - Remise The

   Lawyer, Mar. 1983. st 21: Solvogzng tk L'mal bie Discocary The Army Lawyer, Aug 1982. ) /.Vat Guilty, 01 Hamreide" Toward a ,Vew D

   I . June 1982, at 1. Sohad oft& Soldier Remedim Troinmg or Prohzhtrd Punishment. The Army Law~ei. June 1981. nf 17 Yember of the bar of the Jtats of New York.

   'Weeks r United States 232 U S 383 11914)*In United States v Williams, 622 F 2d 830 (6th Cir 1983) (en bane). CP*, dmied. 449 U S 1127(1981) theUnited States Cavrtof App(als1artheFiithCircvifadopted B "good faith ' ex~epfionto the e x d ~ i ~ o n a ~ ~ rule In Illman V. Gates a ease reeenfli before the Supreme Court. the Court had heard reargument on March 1.1988 on the

   well yet receive the Court's approval? Pending such modificatmn. both federal and state courts are bound to refuse to admit into' evidence an? items or information dincavered as a direct result of a violation of the constitutional rights of an accused. This article wll studs the American exciusmnar? rule as it relates to evidence obtained in \.iolation of various constitutionai provisions and compare the rule to the manner in which the legal Systems of other nations, both of common and civil law foundations, deal with illegally obtained evidence.

   11. THE AMERICAN RULE: THE FOURTH AMENDMENT

   Among the fundamentai guarantees the violation of which may came relevant and probative evidence to be excluded from a cnminal trial IS the Fourth Amendment to the U.S. Constitution. The Fourth Amendment provides:

   The right of the people to be secure in their persons, houses, papers and effects, against unreasonable Searches and seizures, shall not be violated, and na warrants shall issue. but upon probable cause, supported by oathor affirmation, and particularly describing the place to be searched and the person or things to be seized 4

   This provision was designedtogivethe populaceafthe nen American nation a constitutional bulwark against arbitrarygovernmental Intrusion such as was prevalent under the pre-re\,oiutionarywntsaf assistance.fi Modern Fourth Amendment litigation, however. has produced such concepts unknown to the Founding Fathers as"fruit of the poisonous tree? inevitable discovery; and the ''automobile exception."8 This section will briefly outline the contours of the Fourth Amendment, the American exclusionary rule. the Fourth Amendment situations in which the rule may come into play. and conclude with some proposed modifications of the exclusionaryruie.

   reasanable belief that thesearch and iemrt afl~suewasconilstentrlrh

   the Fourth Amendment61 U S L W 3411 (US Pov 30, 19331 (ciflnz Yapp v Ohia 367 C S 643 (1961). Weskr I United States. 232 US. 383 (1914)).

   But 8ee test aceampanimpnares 91-95 iri/,.a far the Court's decision ~n Cafes

   'Sir text Becompanying notes 198-277 iaro far a discurnion of the pod faith exceptions pronpeets for iudie>al approval

   'K S Const amend I\' 'Sir ycnoioil~

   1 W.

   Rineel Searches Se%iurea,

   Arrraf and ConJesaions 8 6 2, at 5-2 text aec~mpanylng notes 96-27 d r o 'See text aecompsnyin~ noten 56-64 wJm*See text 8ccompmyin~ notes 123-26 z x h

   (2d ed 1981).

   1. GENERAL APPLICABILITY

      The zone of interests protected against governmental intrusion by the Fourth Amendment was originally defined by the Supreme Court in property law concepts. Under this view, absent a trmsgresSion of some property right of the citizen, no constitutional violation would have occurred.* It was not until 1967, in Kat2 i: Cnited States,lo a case involving a wiretap of a public phone booth, that the Supreme Court eschewed property law as the touchstone for the invocation of the coverage of the Fourth Amendment. In Katz, the Court held that the Fourth Amendment"protectspeople. not places" and that a search or seizure occurs whenever the government intrudes upon a person's reasonable expectation of privacy.11 Under the facts of Katz, "[tlhe Government's activities in electronically listening to and recording the[accused]'s words violated the privacy upon which he had justifiably relied while using the telphone booth and thusconstituted a'searchand seizure'within themeaningofthe Fourth Amendment."l2 Since the search and seizure was conducted without benefit of prior judicial authorization.'3 it was deemed unreasonable and its fruits were suppressed.

      Not all violations of a person's reasonable expectation of privacy will be subject to Fourth Amendment scrutiny. The Fourth Amendment shields the citizen only from unreasonable searches and seizures conducted by government offieials.l' Searches or seizures conducted by a private citizen not acting as an agent of government authorities will not draw judicial examination.lS Further, the Fourth Amendment is inapplicable to civil proceedings: only crimi-

      , """.

      the current requirements concerning judicial autharization of interception of

      nal trials require a study of the legality of the manner in which evidence mas obtained.'6Finally, without such involvement of American authorities as to make the activity ajaint venture with foreign officials, the Fourth Amendment provides no protections against searches or seizures conducted by foreign officials, even If in violation of American constitutional standards."

      The scope of items subject to seizure under the Fourth Amendment has undergone a constitutional redefinition. Basedupan property law restrictions, the Supreme Court had limited seizures to contraband or instrumentalities of a crime. "Mere evidence" was deemed exempt from seizure,1a In 1976, however. in Warden r. HaZ/den.lBthe Court abandoned these distinctions and held that any article far which a nexus to criminal actiYity can be established is subject ta seizure under the Fourth Amendment.go

      People are also subject to seizure. An arrest has been equated witha Seizure of the person for purposes of the Fourth Amendment.ZL From this notion flow the consequences that an arrest should be effected pursuant to an arrest warrant and that evidenceobtained asa result af an unlawful arrest will be excluded from admission in

      court.z1

   2. THE EXCLLiSI0,VARY RULE

      Once a Fourth Amendment violation has been established. what should the consequences be? The American response has been to exclude the fruits of the illegality from evidence in criminal trials. As will be discussed later ~n this article, this response in virtually unique among the legal systems of the world and is considered an oddity bp foreign observers of American constitutional jurisprudence. This phenomenon was born only in the twentieth century and

      1s still a vital element of American law

      % d e d v United States. 215 U.S 298 (1921)'8387 C S. 294 (19761z~ld at 310*'Terr) I Ohm 392 U S l(19681: Draper v. United Stares. 368 U S 307 (19591United States Y Paige 7 M J 480 IC bl A. 1979)

      Wavis v Miisisnippi 894 US 721 (1969) (fingerprmtsl, United States I Harris

      463 F.2d 1317 (8th Cir 19721. m11 draird 409 U S 927 (1973) fhandwriting exemplars).

1. OTigin and Derelopnent

   The notion thatevidencediscaveredar seized inviolation of Fourth Amendment protections ought to be excluded in a criminal proceed-ingfound itsorigin in 1914 in Weeks u. L'nitedStates.z31n Weeks, the accused was arrested without a warrant while the police gained entry to his home. Thereupon. asearch was conducted. Evidence was discovered which led to the accused's conviction far use of the mails to promote a lottery. In finding that the evidence so seized should not have been used against the accused, the Court held:

   To sanction such proceeding8 would be to affirm byjudiciai decision a manifest neglect, if not an open defiance, of the prohibitions of the Constitution, intended for the pratection of the people against such unauthorized action.z1

   To the Weeks Court, there was no doubt that the exclusionary rule was constitutionally mandated and that to admit evidence seized in violation of the Constitution would compromise the integrity of the federal

   Six years later, in Silcerthorn Litmber Co.. Ine. P. L'~itedStates,z~ the Court enlarged the rule to exclude from evidence any informa. tion gained hy the government as a consequence of illegal action. Thus, where the knowledge acquired by virtue of an illegal search or Seizure was exploited to uncover other evidence, not only would the original information he excluded. but the subsequent discoveries would be rejected as well as "fruit of the poisonous tree."2' In sum. "knowledge gained hy the government's awn wrong cannot be usedby it."2e

   It was not until 1949 that the Supreme Court seriously considered applying the exclusionary rule to the states through the Fourteenth Amendment.28 In Wolfr. Colorado,aa the Court, while canceding that the substantive protectiomofthe Fourth Amendment are binding on the states, declined to impose the exclusionary remedy an them as

   13232 U S 383 119141'.Id. 81 394'SId at 394-95"251 U.S 385 (1920)

   "The term"frunaf thepoisonous tree''rvaseomed 1" Sudoner. UnitedStates.308 US 338. 341 119391

   18251 US at391.**W'alf \ Colorado. 388 US 298 119491 sold

   well.31 This course, however. was abruptly changed twelve years later when, in Mapp c. Ohms1 the Court not only...