Dirty Silver Platters: The Enduring Challenge of Intergovernmental Investigative Illegality

AuthorWayne A. Logan
PositionGary & Sallyn Pajcic Professor of Law, The Florida State University College of Law
Pages293-329
Dirty Silver Platters: The Enduring
Challenge of Intergovernmental
Investigative Illegality
Wayne A. Logan
ABSTRACT: 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 “working arrangements.” Judicial
vigilance, however, has long since waned, a problematic development that
has assumed added significance over time as investigations have become
increasingly multijurisdictional and technologically sophisticated in nature.
The Essay offers the first comprehensive examination of this phenomenon
and its many negative consequences, highlighting the need for more exacting
judicial scrutiny of intergovernmental investigations. Without such
scrutiny, modern silver platter doctrine, which allows admission of evidence
illegally secured by non-forum agents found to be acting independently of
agents of the forum court, is permitted to reign supreme. The Essay thus
picks up where mid-twentieth-century courts left off, providing a
reinvigorated framework to smoke out forum government agent involvement
in investigations and condemn the legal evasion that it allows. In doing so,
the Essay shines a spotlight on a critically important matter implicating core
rule-of-law and governmental transparency values, which will assume ever-
greater importance in coming years as governments accelerate their combined
investigative efforts in the battle against crime and domestic terrorism.
Gary & Sallyn Pajcic Professor of Law, The Florida State University College of Law.
Thanks toProfessors 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
294IOWA 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.APROPOSED RESPONSE........................................................................322
CONCLUSION.......................................................................................328
2013]DIRTY SILVER PLATTERS295
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.”1They 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,4to 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.”5The federal exclusionary
rule should apply when a “search in substance and effect was a joint
operation of the local and federal officers.”6In 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 deemedfederal in character, and hence subject to the
exclusionary rule, if federal agents “participated in” or “had a hand in” the
search yielding evidence.8Soon 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,9which 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. SeeState 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. SeeWeeks 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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