Competing Exclusionary Rules in Multistate Investigations: Resolving Conflicts of State Search-and-Seizure Law.

• Author: McGlynn, Megan

NOTE CONTENTS INTRODUCTION 408 I. EXCLUSIONARY DOCTRINE 413 A. The History of the Federal Exclusionary Rule 414 B. The History of State Exclusionary Rules 416 C. The Connection Between a Constitutional Violation and the Exclusionary Remedy 419 II. CONSTITUTIONAL AND THEORETICAL GUIDEPOSTS FOR CONFLICT-OF-LAWS ANALYSES 421 A. Constitutional Limitations 422 B. Theoretical Insights 424 III. EXISTING APPROACHES TO INTERSTATE SEARCH-AN D-SEIZURE CONFLICTS OF LAW 428 A. Application of Forum Procedural Law 429 B. Territorialist Approaches 433 C. Multifactor Conflict-of-Laws Approaches 435 D. State-Constitutional-Law Analysis 439 E. Exclusionary-Rule Analysis 442 IV. THE LAW-OF-THE-OFFICER APPROACH 447 A. Step 1: State-Constitutional-Law Analysis 448 B. Step 2: Application of the Law of the Officer 450 1. The Values Underlying the Exclusionary Rule 450 a. Deterrence 451 b. Judicial Integrity and Public Trust 458 2. Conflicts of Law Involving Multiple States' Officers 460 CONCLUSION 462 INTRODUCTION

It is almost trite to say that the exclusionary rule is controversial. The federal rule, which allows courts to exclude unlawfully obtained evidence, is fiercely contested. Constitutional scholars continue to debate whether it is constitutionally mandated and, if so, under what theory. (1) Others have focused on the rule's normative appeal, arguing over whether it unfairly immunizes guilty criminals, (2) has expressive importance, (3) or even encourages judges to permit police perjury or otherwise manipulate Fourth Amendment doctrine. (4) And law-and-economics scholars continue to wage an empirical war, employing statistics and behavioral economic insights to show that the rule does or does not deter police misconduct. (5)

Yet despite the depth and quantity of this literature, one area of exclusionary doctrine has been largely ignored: state exclusionary rules and, more particularly, conflicts of state exclusionary rules. The Supreme Court incorporated the Fourth Amendment against the states in 1949 (6) and the exclusionary rule as a remedy for Fourth Amendment violations in 1961. (7) The Federal Constitution therefore serves as a floor for the protection of the right to be free from unreasonable searches and seizures. But every state has a Fourth Amendment analogue in its constitution (8) and remains free to provide criminal defendants with search-and-seizure rights above the federal floor. (9) In fact, Justice William Brennan called on state courts to do exactly that: "[S]tate courts cannot rest when they have afforded their citizens the full protections of the Federal Constitution. State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the Supreme Court's interpretation of federal law." (10)

It did not take long for state courts to accept Justice Brennan's invitation. (11) One 1996 study found that nearly half of all states had established search-and-seizure rights broader than those provided by the Federal Constitution. (12) And that study considered state constitutional interpretations that governed only a sampling of common law-enforcement activities (e.g., home entries to effect felony arrests). (13) The number could be even higher if other search-and-seizure doctrines are considered. A 2006 study, for example, found that eleven states reject the third-party doctrine, which provides that the Fourth Amendment does not protect information provided to a third party, and ten others have indicated in some way that they may reject it in the future. (14)

Similarly, states have adopted a variety of exclusionary rules. Few states have unambiguously rejected any kind of state-law-based exclusionary rule. (15) Far more have recognized rules with various levels of protection ranging from those that are coextensive with the federal rule to those that require exclusion even when a federal exception would otherwise apply. For instance, as of 2007, the highest courts of fourteen states had rejected the so-called "good faith" exception, which prohibits the exclusion of evidence obtained in violation of the Fourth Amendment if the police act in good-faith reliance on a search warrant that later proves to be defective. (16) In sum, there is tremendous variation between the states, not only in terms of the substantive search-and-seizure rights provided but also the exclusionary rules that remedy violations of those rights. (17)

This checkered landscape produces an inevitable question: what law applies when a search occurs in one state but the defendant is prosecuted in another? Consider a stylized version of the facts in People v. Orlosky. (18) A crime is committed in State A. Before an arrest is made, the defendant moves to State B. In the course of investigating an entirely different crime, State B officers perform a search and uncover evidence of the State A crime. The evidence is admissible under State A's constitution, but inadmissible under State B's constitution. Should the evidence be admitted in a proceeding in State A because forum law applies, or excluded because the law of the situs of the search applies? What if State A officers perform a search in State B for a case tried in State A? (19) Or State A and State B officers cooperate to perform a single search in State B for a case tried in State A? (20) When multiple jurisdictions are involved, courts must perform some conflict-of-laws analysis to determine which law governs the officers who perform any relevant searches. (21)

Complicating matters further is the advent of new technologies, which will only make multistate cases more prevalent. State lines are more porous and less practically important than ever before. Not only do people and their possessions regularly cross state lines physically, (22) but, with the click of a mouse, one can almost instantaneously send and store information across state lines with no physical movement at all. Consider State v. Evers. (23) A California officer investigating online child pornography obtained a search warrant from a California court that required America Online (AOL)--headquartered in Virginia--to turn over the names and billing addresses of various users, including the defendant. The California officer learned that the defendant resided in New Jersey and forwarded the results of his investigation to New Jersey police, who promptly obtained a search warrant for the defendant's residence and arrested him. (24) Among other evidentiary questions raised was whether the New Jersey Constitution protected the account information obtained by the California officer pursuant to a California warrant. (25) The facts were different, but the question remained the same: what law applies when a crime and a related search involve multiple jurisdictions ?

This Note analyzes current approaches to interstate search-and-seizure conflicts of law, concludes that none are satisfactory, and proposes a novel approach consistent with both conflict-of-laws theory and the values underlying state exclusionary rules. A few caveats are worth highlighting at the outset. First, this Note considers only cases involving the exclusion of evidence as a result of a search-and-seizure violation; it does not address cases involving custodial interrogation (26) and other doctrines with exclusionary remedies. Second, this analysis is limited to cases involving officers from more than one state. Disputes arising from federal-state cooperation may raise additional concerns not addressed here.

Part I provides a brief overview of the federal and state exclusionary rules. While different constitutions may not mandate the exclusion of evidence, federal and state exclusionary rules are constitutionally rooted. (27) Because of that connection, it does not make sense to apply one state's exclusionary rule to a violation of another state's constitution.

Part II briefly discusses the sparse constitutional constraints on a court's approach as well as the theoretical and judicial insights that have been gleaned over the last century as the conflict-of-laws field has developed. State courts are generally free to engage in almost uninhibited common law making to devise their own approaches to resolving these cases. The resulting experimentation with different theories has revealed a few principles that should guide the development of new theories. Perhaps most importantly, courts should adopt rules that are sensitive to the substance and intended reach of the laws they seek to apply.

Part III assesses the strengths and weaknesses of current approaches. While fact patterns like those discussed above have bedeviled courts for decades, there has thus far been no clear consensus on the appropriate solution. Part III identifies five distinct approaches to the problem. A handful of courts argue that the exclusionary rule is a rule of evidence and, because rules of evidence are procedural, forum law must apply A few courts opt for universal application of either forum or situs law. Some endorse one of the modern conflict-of-laws theories, such as governmental interest analysis or the most-significant-relationship test. Others perform a type of state-constitutional-law analysis and determine whether, for instance, the forum state's constitution applies extraterritorially to its officers when they perform searches in other states. And still others choose the law that best serves the interests of deterrence, judicial integrity, and any of the other purposes underlying a particular exclusionary rule.

Each of the extant approaches suffers from some degree of theoretical incoherence and, equally concerning, produces results at odds with the reasons the exclusionary rule was created. Rather than persist in applying these flawed approaches, state courts should devise a conflict-of-laws framework that can consistently and appropriately resolve interstate search-and-seizure conflicts of law.

Part IV proposes and defends...