Dirty Silver Platters: The Enduring Challenge of Intergovernmental Investigative Illegality

• Author: Wayne A. Logan
• Position: Gary & Sallyn Pajcic Professor of Law, The Florida State University College of Law
• Pages: 293-329

Dirty Silver Platters: The Enduring

Challenge of Intergovernmental

Investigative Illegality

Wayne A. Logan∗

ABSTRACT: This Essay addresses a longstanding concern in America n

criminal justice: that law enforcement agents of different governm ents will

work together to evade a legal limit imposed by one of the governments. In

the past, with the U.S. Supreme Court i n the lead, courts were prone to

closely scrutinize intergover nmental investigative efforts, o n vigilant guard

against what the Court called impro per “working arrangements.” Judicial

vigilance, however, has long si nce waned, a problematic dev elopment that

has assumed added significance ov er time as investigations ha ve become

increasingly multijurisdictio nal and technologically sophistica ted in nature.

The Essay offers the first comprehen sive examination of this phenomeno n

and its many negative consequences , highlighting the need for more exa cting

judicial scrutiny of intergovernm ental investigations. With out such

scrutiny, modern silver platter doctrine, which allows admissi on of evidence

illegally secured by non-forum agents found to be acting ind ependently of

agents of the forum court, is permit ted to reign supreme. The Essay thu s

picks up where mid-twentieth-century c ourts left off, providing a

reinvigorated framework to smo ke out forum government agent involvement

in investigations and condem n the legal evasion that it al lows. In doing so,

the Essay shines a spotlight on a critically important matter imp licating core

rule-of-law and governmental t ransparency values, which wil l assume ever-

greater importance in coming ye ars as governments accelerate their combined

investigative efforts in the battle a gainst crime and domestic terrorism.

∗ Gary & Sallyn Pajcic Professor of Law, The Florida State University College of Law.

Thanks to Professors Robert Bloom, Mary Fan, Elizabeth Joh, Yale Kamisar, Alexandra

Natapoff, Dan Richman, Chris Slobogin, Scott Sundby, George Thomas, Sandra Guerra

Thompson, Sam Wiseman and Ron Wright for their very helpful comments on prior drafts, as

well as colleagues at Southwestern Law School who kindl y invited me to present the paper in its

formative stages and provided valuable insights. Thanks also go to Steve Ferrell, Mina Ford, and

Maureen Kane for their excellent research assistance.

293

294 IOWA LAW REVIEW [Vol. 99:293

INTRODUCTION .................................................................................... 295

I. EVASION AND THE COURT .................................................................... 298

II. MODERN APPROACHES ......................................................................... 307

A. FEDERAL COURTS—SEARCH WARRANTS ........................................... 309

B. STATE COURTS ............................................................................... 311

1. State Constitutional Law ....................................................... 311

2. Eavesdropping ...................................................................... 314

III. THE CONSEQUENCES OF JUDICIAL LAXITY ............................................ 316

IV. A PROPOSED RESPONSE ........................................................................ 322

CONCLUSION ....................................................................................... 328

2013] DIRTY SILVER PLATTERS 295

INTRODUCTION

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.