The "silver platter" in the context of state constitutional adjudication.

• Author: McGuinness, Martin

1. INTRODUCTION

   1. Background--the "Silver Platter Doctrine"

      Almost fifty years ago, a divided United States Supreme Court issued the landmark ruling in Elkins v. United States. (1) In Elkins, the majority held that evidence obtained by state officers in violation of the Fourth Amendment could not be introduced against a defendant in a federal criminal trial, notwithstanding the fact that federal agents had not participated in the constitutional violation. (2) In issuing its decision, the Court ended the long-term practice known as the "silver platter doctrine," wherein state agents would procure evidence against a defendant that federal agents would otherwise be unable to obtain themselves because of the limitations enforced against them by the Fourth Amendment and the exclusionary rule. (3)

      Interestingly, the "silver platter doctrine" (although not the phrase) (4) arose in response to another landmark case, Weeks v. United States, (5) decided by the Court almost fifty years before Elkins. In Weeks, the Court held that evidence obtained by federal officials in violation of the Fourth Amendment cannot be used against a defendant in a federal criminal proceeding. (6) In deciding as such, the Court established what in legal terminology became known as the "exclusionary rule," denoted as such because it requires the exclusion of illegally obtained evidence. Also at issue in Weeks, however, was evidence obtained by state officials in violation of the Fourth Amendment. With regard to that particular evidence, the Court took a different view and decided that because (at the time) the Fourth Amendment was not enforceable against the states, evidence seized by state agents in violation of it did not have to be excluded from a federal criminal proceeding. (7)

      The written portion of the Weeks decision that deals with the evidence obtained by state officials is minor in comparison to the portion establishing the "exclusionary rule" for federal officials. In spite of such brevity, however, the Court's analysis on that issue had a major impact on federal constitutional jurisprudence. By disallowing the admission of evidence obtained unconstitutionally by federal officials while providing for the admission of such evidence if it were obtained by state officials, the Court created incentive for federal officials to look to state officials to obtain evidence that would otherwise be inadmissible. Federal officials took due notice of this incentive, and their subsequent collusion with state officials over the next few decades led directly to the Court's decision in Elkins.

   2. State Constitutional Issues

      While the "silver platter doctrine" in the Federal Constitutional context may have rusted in light of Elkins and the Court's landmark decision one year later in Mapp v. Ohio, (8) there are similar evidentiary situations that are very important in the context of state constitutional adjudication. In this paper, I will be examining cases which present what I feel to be the most important of these situations--those in which a federal prosecution is seeking to admit evidence seized by federal or state officials in violation of the constitution of the state where it was obtained. (9) The reason I find this evidentiary scenario to be the most prominent in terms of state constitutional adjudication is essentially two-fold.

      First, states cannot violate the Federal Constitution and provide fewer constitutional protections than granted federally. (10) States may, however, choose to provide those inside their geographical confines with more protection than provided federally, as long as this too does not violate the Federal Constitution in some manner. Second, many state constitutions actually do provide more protection than the Federal Constitution in a variety of areas. (11) The ability to provide more protection results in situations where federal or state officers may be operating within a state in a manner that is consistent with the Federal Constitution or federal law, but wholly in violation of the particular state's law or constitution. Indeed, this is a common situation which has resulted in a significant amount of litigation in the federal courts.

      With each case discussed, I will be analyzing how the court decided the admissibility issue, as well as its reasoning for deciding as such. It is irrelevant to the analysis whether the particular court chose to exclude or admit the evidence, and cases with both outcomes will be examined. The purpose of this is to provide an overview of the arguments courts use to either justify the admission of the evidence, or require the exclusion of the evidence. After arguments and cases on both sides have been discussed, I will attempt to apply their reasoning to a contemporary example that is currently unfolding in New York and predict how and why a federal court in New York will decide the issue.

2. THE CASES

   1. Holding--The Evidence is Admissible

      The first type of case to be examined is where the federal court held that evidence seized in violation of a particular state's constitution is admissible in a federal criminal trial. One such case is United States v. Hall, (12) a Ninth Circuit case where the court was confronted with a situation in which federal officers had obtained information via a wiretap that was in complete compliance with federal law, but that was in fact prohibited under an existing California law making such wiretaps illegal. (13) The federal agents provided the information to state agents who, pursuant to which, illegally obtained evidence from the defendant. (14) The state agents then gave the evidence to the federal agents who subsequently introduced it at trial. (15) The reason the state agents turned the evidence over to federal officials was because they realized it was obtained in violation of state law, making it inadmissible in a California trial. (16)

      On appeal, the defendant argued that the evidence obtained by the state agents pursuant to the federally obtained information was inadmissible because under California law the federal wiretap was prohibited. (17) The court held that although the wiretap and any subsequent seizure of evidence pursuant to it was illegal under California law, such evidence was properly admitted in federal court. (18) In deciding as such the court found that the exclusionary rule in a federal case does not apply to violations of state law. Rather, it held that the exclusionary rule in federal cases is applicable only to those situations where a federal constitutional right or law has been violated. Therefore, because only the defendant's state rights had been violated, it was not error to admit the evidence against him.

      Nor, as our previous discussion has indicated, have we found exclusion of the wiretap evidence to be required by federal law. In the absence of any federal violation, therefore, we are not required to exclude the challenged material; the bounds of admissibility of evidence for federal courts are not ordinarily subject to determination by the states. (19) The above case illustrates an interesting scenario. A defendant's state rights were violated in the state by both federal and state agents, resulting in the obtainment of inculpatory evidence. In spite of these violations, however, the court chose to admit the evidence. The reasoning used by the court to support inclusion is essentially that...