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 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 350–53 (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, 78–79 (1949).

9. See Elkins v. United States, 364 U.S. 206, 208 & n.2 (1960).

10. Id.at 223.