A Defendant's Standing to Object to the Admission of the Illegally Obtained Evidence

• Author: Major Talbot J. Nicholas
• Pages: 06

strable that the Court of Military Appeals has looked to federal court cases for puidance in the application of the exelusionan. iule to CBEIS arising in the armed forces.5 The Court of Military Appeals has vieired the >lanual rule as derived from the federal rule:' therefore, it is likely that the Court would modify the Manual rule to conform to a constitutionally based federal rule should the Supreme Court modify the federal rule.' It 1s concluded, therefore, that should the federal courts give standinp to an accused to object to the admissibility of evidence on the pround of an illegal search of another's propertr, the Court of Military Appeals xould do likewise, notwithstanding the fact that the >lanual provision provides for inadmissibility only in the event of an unlawful search of the accused's property The purpose of this aiticle IS to inquire into the federal rule as it relates to standing to object.

I1 THE EKCLL'SIOSARY RCLE

A . ORIGIXS

Before looking into the question of "Who has Standing to Invoke the Rule." part 111, iiifra. it is worthwhile lookina into the exclusionary rule itself. The rationale for the rule has a close logical relation to the rationale for the standing requirement.

At common law there are man)- instances when a court would deny itself credible evidence because the production of the evidence would, under the circumstances, do a disservice to Some public policy deemed to be of ereater importance to society than the production of truth in B particular trial. Far example. confidential communications between husband and wife would not be heard so that married persons would be able freely to communicate with each other. Fulther, confidential communications between attorney and client w r e protected so that the client's right to counsel could be enjoyed.

Nevertheless. it seems that with respect to evidence procured in an illeeal search the court would not demive itself of the evidence

'See Ivebb, .Mditary Sra,ehrs and Se>riiria-Tha Dcidiipmmt o i e Cor-shtutionol Right. 26 MIL L. Rn 1 (19641.

'Cnited States v Dupree, 1 U S.C MA. 865. 5 C M.R 93 (1952).

,This k clearly not a neceirarg ~ m ~ l u i l ~ n far other nan-con3fltutlonall)

baled eanfliets between federal rules and the Manual. The Court's adherence Lo the Xlanual ~ 1 % far corroboration of confessions, after the federal rule

was modified so that ~f n.as Incommtent. IS B dear example of the Court's

freedom nn the area. See United States ,. Smith. 13 U.S.C.MA,

105. 32

C.M R 105 (1962)

STANDING TO OBJECT

in the interest of protecting "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures ''I

an illegal search was stated m Co,nmonimalth c. Dana?

The rule respecting the admi

When papers 810 offered in evidence, thezeavrt c m take no notice hov they w e ~ e obtained, whether larfully 01. unlawfully; nor would they form a collateral isme to determine that question. . . .I0

The rule was relied on by the Supreme Court in Adams C. Sew Yorkl' in 1904. It was a rule designed for the use of a trial judge in the midst of a trial on the merits of a ease.

Some authors'* trace the demise of this rule to Boyd v. L'nited States.L3 In a sense, Boyd did start a line of cases that later clashed with the rule of A d a m In Boyd a lower court had ordered the production of Boyd's private books and papers. It did so under the authority of a statute" which provided for the government attorney to move the court for papers in the possession of a claimant's when in his opinion such papers will tend to prove the government's allegatians. Should the claimant fail to praduce the papers, the government's allegations were to be taken as confessed.

The government argued that this procedure did not violate the Fifth Amendment because, in an in rem proceeding for a forfeiture, the parties are not required by the Act of 1874 to testify against themselves since the suit is not against them, but against the property. The Court disposed af this Fifth dmendment argument as follows:

It begs the question at issue. A witness, as well as a party, in protected by the iarfrom bemg compelled to giie elideme that tends to erlmmate him, or to subject his property to forfeiture. . . . Greenl. Ev. $8 451-453. Blit, a6 befare raid, although the owner of goods, naught to be forfeited by B proceeding m rem, is not the nominal party, he 1s neverthe. lesa the subatantid party to the suit; . . . he 1% entitled to all the pnnieges which appertain to a person who is prosecuted for a farfeitvre of his property by reaaan of committing a er~mmal offenre.'.

' U.

S. CONST.amend. IV.

' 4 3 Yasa. (2 Met.) 328 (1841).

"Id.at337.

192 U.S. 585 11804)

"Boyd Y. United St;

*GO bldlB

This could have disposed of the case. but the Court went on to answer the government's second argument that the proceedine did not violate the Fourth Amendment because the court order to produce mas not a search. The Court concluded that the private books and paiiers were not semble items. Conimanveolth 7.. Dann was distinguished on the pround that in that case the items seized were imiilements of narnhline which were unlawful to possess It noted the relationship hetween the Faurlh and Fifth Amendments in that the condemned unienaonnble searches iiere almost always made for the puriioie of compellinp a man to give evidence against en the court oiders a man to produce otherwise hooks and papers for use against himself, the nt to a search and violates the Fourth Amend- The evil Boyd struck down was that of a court compelling a man to be a witness aaainst himself. The result would hare been different had the papers been obtained in an actual search." The Couit in Adoms distinguished Boyd on the ground that in that case a court had issued an order to produce private books and papers. whereas in the C R S ~

before it the papers were found in the execution of a search

The next look at a coui+'s duty with respect to a man's private books and papers was taken in Wwks r. L'nited Stntes.19 However, ahereaa in Boyd the court had itself ordered production of the paper?. in Weeks no such direct action was involved In Wiiks

the papers nere obtained in a search. Before trial the owner had applied to the court for their return on the ground that they had been illegally seized. The court determined the search to be illegal but refused to retun the papers On trial they were offered against him, whereuixm his objection to their admission in evidence was denied. The Supreme Court assumed that the trial court'% refusal to hold the evidence Inadmissible was based on its improper relisn~e an Adorns. The Court said. however. that Adnms was not authority for refusing to return illegally seized property when application was made for it before trial. It held

that having made a ieasonshle application for their return, which VBJhesid and psssed upon hi the court. there was In\o!red in the order re. fusing the application B denial of the eonsrmtional right of the -e.

In holding them [the letters] and permitting their use upon e chink prejudicial enor was committed . .ImSee GRELIISAF, EVIDENCE B 4691 n. 2 (16th ed. 18991232 US. 383 (1914)'*id.

81 398132 AGO 0.916

ment

STANDING TO OBJECT

In Weeks, as in Boyd. the Court found that a lower courtbreached its duty, but in Weeks the Court bottomed that duty solely on the Fourth Amendment. The Court said:

The effect of the 4th Amendment is v1 put the eour~s of the United States and Federal afficiaii. m the exercise of their power and authonty, under limitations and restraints as to the exercise of such power and authority, and to forerer secure the people, then persons, houses, papers and effects, againht ail unreasonable searches and ~ e m r e s under the

guise of law. This protection reaches ail alike, whether accused of crime

or not, and the duty of giving ~t force snd eRect is abhgatory upon ail intrusted under our Federal ayrtem with the enforcement of the laws. The tendency of those who execute the eriminsi laws of the country to obtain eonvietiom by means of unlawful Beizum . , , should find nosanetion in the 1udgments of the eourtb. which are charged at ail tlmes with the support of the Constitution, and to which people of sli eondi. tms haw a right to appeal far'the maintenance of such fundamental rights.#'

. . .

The ease in the anpeet in r,hich we are dealing with it in~olvea the right of the court in a criminal prosecution 10 retain for the purpmes of ekidenee . . . [papers die%aily aeized] , . . . If letters and priiate document? can thvs be seized and heid and "sed in widence againat a citizen aecvied of an offense, the protection of the 4th Amendment, . . .

1s af no ,due, . . . To sanction such proceedings uouid he to affirm by judicial decision B manifeat neglect, if not an open defiance, of the pro. hlblfions of the Constitution, intended #or the protection of the people against such unauthorized

After Weeks the ultimate demise of Adam8 and the concomitant erystalization of an exclusionan rule \\..as to come more quickly. The requirement that there be a pretrial application was relaxed in Goukd 8. L'nited Stntrs,ll at least when the defendant was not aware of the government's possession of the papers. The Court put the Adam rule in better perspective saying:

While this is B rule of great practical importance, Yet, after all, it is d y

B rule of procedure, and therefore if is not 0 be applied 88 B hard. and.fast farmvla LO eiery case regardless of its special circumstances. We think, rather, that if is a rule to he used to secure the ends of judice vnder the circumstances presented by each case; and where, in the progress of B trial, kt becomes probable that there has been an uncanstitvtionai seizure of papera, it is the duts of the trial court to entertain an objection to their admission on a motion fer their exclusion, and to consider and decide the question as then presented, even where P motion to...