2013] DIRTY SILVER PLATTERS 295
American federalism has long complicated efforts to regulate police
investigative practices. The difficulty stems from the fact that when
governments act on their individual sovereign power to impose legal limits
on police authority, they do more than instantiate Madison’s goal of
affording citizens a “double security.”1 They also create the risk that officers,
collectively engaged in the “competitive enterprise of ferreting out crime,” 2
will seek to evade a more demanding legal norm of one government.3
The Supreme Court first recognized this risk in the Prohibition Era,
when it condemned efforts by the federal government, whose agents were
alone subject to the Fourth Amendment exclusionary rule,4 to mount
prosecutions based on liquor illegally seized by state agents. In 1927, a
unanimous Court proclaimed that the judiciary “must be vigilant to
scrutinize the attendant facts with an eye to detect and a hand to prevent . . .
[illegalities] by circuitous and indirect methods.”5 The federal exclusionary
rule should apply when a “search in substance and effect was a joint
operation of the local and federal officers.”6 In another Prohibition case,
decided that same term, the Court again unanimously condemned a state
search resulting in a federal liquor prosecution, noting that “[e]vidence
obtained through wrongful search and seizure by state officers who are
cooperating with federal officials must be excluded.”7
The Court’s sensitivity to law enforcement’s strategic behaviors
remained a constant in later years. In 1949, the Court held that a search
would be deemed federal in character, and hence subject to the
exclusionary rule, if federal agents “participated in” or “had a hand in” the
search yielding evidence.8 Soon thereafter, in a pair of seminal Warren
Court opinions, concern over law enforcement evasion reached its zenith. In
Elkins v. United States, the Court outlawed what had come to be known as the
“silver platter” doctrine,9 which allowed evidence that state and local police
had unconstitutionally seized to be handed over for use in federal criminal
trials, when the police acted independently of federal agents.10
1. THE FEDERALIST NO. 51, at 350–53 (James Madison) (Jacob Earnest Cooke ed., 1961).
2. Johnson v. United States, 333 U.S. 10, 14 (1948).
3. See State v. Mollica, 554 A.2d 1315, 1324 (N.J. 1989) (“The problem of evidence
acquired and used respectively by officers w ho are subject to differing legal standards has been
with us a long time.”).
4. See Weeks v. United States, 232 U.S. 383, 398 (1914).
5. Byars v. United States, 273 U.S. 28, 32 (1927).
6. Id. at 33.
7. Gambino v. United States, 275 U.S. 310, 314 (1927).
8. Lustig v. United States, 338 U.S. 74, 78–79 (1949).
9. See Elkins v. United States, 364 U.S. 206, 208 & n.2 (1960).
10. Id. at 223.