Chapter 5 - §4. Evidence subject to exclusion under Fourth Amendment

JurisdictionUnited States

§4. Evidence subject to exclusion under Fourth Amendment

Evidence that is obtained in violation of the Fourth Amendment is subject to exclusion under the exclusionary rule. See Herring v. U.S. (2009) 555 U.S. 135, 139. This rule applies to evidence that was found or seized in the course of the unlawful conduct itself (the so-called "direct" or "primary" evidence) and to evidence that was later obtained through information gained by the police from their unlawful conduct (the so-called "derivative" or "secondary" evidence). See Utah v. Strieff (2016) 579 U.S. 232, 237; Nix v. Williams (1984) 467 U.S. 431, 441. Determining whether the exclusionary rule applies in a particular instance, however, is separate from the question of whether the police violated a defendant's Fourth Amendment rights because not all evidence obtained through a violation of the Fourth Amendment will be excluded. See U.S. v. Leon (1984) 468 U.S. 897, 906. This is because the exclusionary rule is "a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect," whose purpose is to deter officers from violating the Fourth Amendment to obtain evidence. U.S. v. Calandra (1974) 414 U.S. 338, 348; see James v. Illinois (1990) 493 U.S. 307, 311; Stone v. Powell (1976) 428 U.S. 465, 486-87 & n.24; Elkins v. U.S. (1960) 364 U.S. 206, 217; People v. Macabeo (2016) 1 Cal.5th 1206, 1220; People v. Sanders (2003) 31 Cal.4th 318, 324. To have any appreciable deterrent benefit, the exclusion of evidence "must alter the behavior of individual law enforcement officers or the policies of their departments." Leon, 468 U.S. at 918; U.S. v. Elmore (9th Cir.2019) 917 F.3d 1068, 1076. Thus, when suppression of improperly obtained evidence will not further this justification, courts will generally decline to apply the exclusionary rule even though an unreasonable search or seizure led to the disputed evidence. See Strieff, 579 U.S. at 237; James, 493 U.S. at 311. See "Exceptions to exclusionary rule," ch. 5-A, §4.2.


Federal courts have generally held that the exclusionary rule does not automatically prohibit the introduction of evidence obtained through a Fourth Amendment violation. See U.S. v. Haynes (9th Cir.2000) 216 F.3d 789, 801 (surveying Ninth Circuit opinions); U.S. v. Brimah (7th Cir.2000) 214 F.3d 854, 858 (surveying federal circuit-court opinions). The California Supreme Court has not, however, explicitly addressed this issue since the passage of Proposition 8 (Victims' Bill of Rights). Before the passage of Proposition 8, the Supreme Court held that evidence suppressed as a result of a motion to suppress cannot be introduced into evidence at sentencing in the same case in which the hearing was held. People v. Belleci (1979) 24 Cal.3d 879, 888. Later appellate-court decisions have noted, however, that Proposition 8 eliminated many of the rules of exclusion in criminal cases and have held that illegally seized and suppressed evidence is admissible in sentencing proceedings in light of Proposition 8. See People v. Flores (1st Dist.1987) 196 Cal.App.3d 475, 486; People v. Brewster (1st Dist.1986) 184 Cal.App.3d 921, 929. See "Exceptions to admissibility," ch. 1, §3.2. Despite these federal circuit and California appellate court decisions, the California Supreme Court has assumed without deciding that the exclusionary rule applies to evidence in aggravation introduced in the penalty phase of trial. See People v. Casares (2016) 62 Cal.4th 808, 834, disapproved on other grounds, People v. Dalton (2019) 7 Cal.5th 166.

§4.1. Generally.

1. Exclusion of direct evidence. Evidence that is obtained as a direct result of a Fourth Amendment violation is subject to the exclusionary rule. See Nix v. Williams (1984) 467 U.S. 431, 441; Weeks v. U.S. (1914) 232 U.S. 383, 393-94, overruled on other grounds, Elkins v. U.S. (1960) 364 U.S. 206.

2. Exclusion of derivative evidence. Derivative evidence—evidence obtained through information gained by police as a result of illegal conduct—is subject to the exclusionary rule. See Nix, 467 U.S. at 441. This is because the derivative evidence, often referred to as the "fruit of the poisonous tree," is also tainted by the illegal action. See Segura v. U.S. (1984) 468 U.S. 796, 804; Wong Sun v. U.S. (1963) 371 U.S. 471, 487-88; People v. Smith (4th Dist.2020) 46 Cal.App.5th 375, 390; Lozoya v. Superior Ct. (2d Dist.1987) 189 Cal.App.3d 1332, 1340-41. As such, the fruit and not just the tree itself must be suppressed. People v. Mayfield (1997) 14 Cal.4th 668, 760, disapproved on other grounds, People v. Scott (2015) 61 Cal.4th 363; People v. Williams (1988) 45 Cal.3d 1268, 1299, overruled on other grounds, People v. Diaz (2015) 60 Cal.4th 1176. This doctrine prevents the prosecution from making indirect use of tainted evidence, such as by introducing evidence obtained through leads gained from unlawfully obtained evidence. See Walder v. U.S. (1954) 347 U.S. 62, 64-65. It also applies to verbal evidence, like statements, as well as physical evidence. See, e.g., Wong Sun, 371 U.S. at 487-88 (when D made statement after illegal entry by police, statements themselves were inadmissible, as were narcotics discovered at another location based on information provided by D's statement).

§4.2. Exceptions to exclusionary rule. In recent decades, the U.S. Supreme Court has balanced the benefit of deterring police misconduct through application of the exclusionary rule against the cost of suppressing reliable evidence of criminal activity. See California v. Greenwood (1988) 486 U.S. 35, 44. With this balancing, the Court has consistently limited application of the exclusionary rule to situations where "its remedial objectives are thought most efficaciously served." U.S. v. Leon (1984) 468 U.S. 897, 907-08. Several exceptions to the exclusionary rule have developed from this policy consideration: (1) good faith, (2) attenuation, (3) independent source, (4) inevitable discovery, (5) impeachment, and (6) collateral use. See James v. Illinois (1990) 493 U.S. 307, 308-09 (exception 5); Leon, 468 U.S. at 913 (exception 1); Nix v. Williams (1984) 467 U.S. 431, 443-44 (exceptions 3-4); U.S. v. Calandra (1974) 414 U.S. 338, 348 (exception 6); People v. Thierry (2d Dist.1998) 64 Cal.App.4th 176, 180 (exceptions 2-4).

1. Good-faith exception. The good-faith exception to the exclusionary rule allows for illegally obtained evidence to be admitted when the officer acted in good faith in conducting the search or seizure. The good-faith exception was initially introduced in U.S. v. Leon. See Davis v. U.S. (2011) 564 U.S. 229, 238; Illinois v. Krull (1987) 480 U.S. 340, 342; People v. Macabeo (2016) 1 Cal.5th 1206, 1220. In Leon, the U.S. Supreme Court noted that the purpose of the exclusionary rule is not furthered when the officer's conduct, albeit unlawful, was objectively reasonable. Leon, 468 U.S. at 919-20; see U.S. v. Korte (9th Cir.2019) 918 F.3d 750, 758. When the good-faith exception applies, courts have permitted the admission of direct evidence. See Leon, 468 U.S. at 904-05. For the good-faith exception to apply, there must be objectively reasonable reliance on the part of the officer. Id. at 922; see People v. Rosas (2d Dist.2020) 50 Cal.App.5th 17, 25. The prosecution bears the burden of establishing this reliance. U.S. v. Artis (9th Cir.2019) 919 F.3d 1123, 1134; People v. Camarella (1991) 54 Cal.3d 592, 596; see Macabeo, 1 Cal.5th at 1213. This burden is met by establishing that a "reasonable and well-trained officer" would have believed he was acting under a valid warrant or law in light of all the circumstances. See Herring v. U.S. (2009) 555 U.S. 135, 145; U.S. v. Luong (9th Cir.2006) 470 F.3d 898, 902; Camarella, 54 Cal.3d at 605-06; see, e.g., People v. Maxwell (3d Dist.2020) 58 Cal.App.5th 546, 559 (good-faith exception applied when search conducted by police in reliance on bail terms later found to have been improperly imposed); Rosas, 50 Cal.App.5th at 25-26 (officer's subjective belief that all probationers were subject to search terms was insufficient to support application of good-faith exception). Courts may consider the officer's knowledge and experience in making this assessment. See Herring, 555 U.S. at 145-46. How the standard is applied will depend on what the officer relies on: a warrant, existing law, or a mistake.

(1) Reliance on warrant. An officer's reliance on a warrant will usually be objectively reasonable. Reliance on a warrant issued by a neutral and detached magistrate is "the clearest indication that the officers acted in an objectively reasonable manner." Messerschmidt v. Millender (2012) 565 U.S. 535, 546; see Leon, 468 U.S. at 922 (warrant normally suffices to establish officer acted in good faith). This can be the case even when the officer relies on incorrect records establishing that a warrant exists or is still valid. See "Reliance on mistake," ch. 5-A, §4.2.1(3). But the existence of a warrant is not always enough to justify the good-faith exception. The good-faith exception applies only if the officer's reliance on the warrant was objectively reasonable, which requires officers to have reasonable knowledge of what the law prohibits. See Leon, 468 U.S. at 919 n.20, 922; U.S. v. King (9th Cir.2021) 985 F.3d 702, 709-10; U.S. v. Elmore (9th Cir.2019) 917 F.3d 1068, 1076; see, e.g., People v. Nguyen (6th Dist.2017) 12 Cal.App.5th 574, 586-87 (officers could not rely on warrant when search clearly exceeded scope of warrant). See "Requirements for executing a valid warrant," ch. 5-A, §2.2.1(2). The principal inquiry is "whether a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization." Leon, 468 U.S. at 922 n.23; see King, 985 F.3d at 710. Courts have noted several situations where reliance on a warrant may not justify application of the good-faith exception. For example, when the magistrate was...

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