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
SUMMARY

This Essay addresses a longstanding concern in American criminal justice: that law enforcement agents of different governments will work together to evade a legal limit imposed by one of the governments. In the past, with the U.S. Supreme Court in the lead, courts were prone to closely scrutinize intergovernmental investigative efforts, on vigilant guard against what the Court called improper "wor... (see full summary)

 
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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 35053 (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, 7879 (1949).
9. See Elkins v. United States, 364 U.S. 206, 208 & n.2 (1960).
10. Id. at 223.

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