Hearing thy neighbor: the doctrine of attenuation and illegal eavesdropping by private citizens.

AuthorOwens, Jason V.

    Historically, evidence obtained by police in violation of the Fourth Amendment's prohibition on illegal search and seizure has fallen under the "rule of exclusion," which requires evidence tainted by government misconduct to be suppressed at trial. (1) The legal and policy considerations underpinning the rule of exclusion are numerous. (2) Among the most persuasive are: (1) the evidence would not have been uncovered without the aid of illegal government conduct; (2) admitting tainted evidence at trial excuses and encourages police misconduct; and (3) the admission of such evidence clogs courts with appeals. (3) Perhaps the strongest rationale supporting the rule of exclusion, however, is that it deters police from violating the Fourth Amendment rights of citizens by preventing the government from obtaining convictions through the use of tainted evidence. (4)

    The federal wiretapping statute prohibits both the government and private citizens from eavesdropping on individuals' phone and wire communications without permission. (5) In addition to barring the act of illegal eavesdropping, the statute makes clear that any evidence "derived from" illegally intercepted phone and wire communications will be inadmissible at trial, thus triggering what amounts to a statutory version of the common law rule of exclusion. (6)

    The federal eavesdropping statute makes it illegal for police to wiretap a suspect's phone without a warrant. (7) A private citizen who listens to his neighbor's cordless phone conversation without permission also violates the statute. (8) If the same citizen reports the contents of the neighbor's conversation to police, evidence "derived from" the intercepted conversation will be suppressed at trial. (9) Thus, the rule of exclusion applies to all evidence "derived from" illegal eavesdropping, regardless of whether the eavesdropper is the government, a business associate, or a curious neighbor. (10)

    When police receive tips based on a private citizen's illegal eavesdropping, follow-up investigations are difficult because the rule of exclusion calls for the suppression of evidence "derived from" the underlying illegal eavesdropping. (11) Suppressed evidence almost always includes the contents of the eavesdropped conversation itself, but can also include a suspect's subsequent confession or physical evidence gathered during a follow-up investigation. (12) The rule puts police in a difficult position: they have received a private citizen's tip that ties a suspect to a crime, but the "taint" of the tipster's illegal conduct renders related evidence inadmissible. (13) Meanwhile, the police themselves have done nothing wrong. (14) Some of the most difficult instances occur when the illegal eavesdropper listens in on suspects planning a future crime, and then tells police. (15) Police thus face a choice between allowing the crime to occur or making an arrest that probably will not hold up in court. (16)

    The purpose behind the rule of exclusion is to deter police from violating the Fourth Amendment rights of individuals. (17) By applying the rule to the acts of private citizens, however, the eavesdropping statute goes considerably farther, penalizing police and prosecutors for the illegal conduct of third parties, even when the government has done nothing wrong. (18)

    Courts have identified several exceptions to the rule of exclusion, including the independent source and inevitable discovery doctrines, both of which allow the admission of evidence despite a Fourth Amendment violation when the contested evidence could have been discovered through an independent, untainted source or method. (19) Perhaps the best known exception to the exclusionary rule is the doctrine of attenuation, which permits the admission of evidence despite illegal government conduct when the discovery of the contested evidence is sufficiently "removed" from the government's illegal conduct. (20) Attenuation occurs when the connection between the government misconduct and the evidence in question is so remote that the "taint" of the government's misconduct has "dissipated." (21)

    A court's attenuation analysis turns on a balance of four factors: the passage of time, the presence of intervening events, the nature and scope of the official misconduct, and whether the defendant received Miranda warnings. (22) In the landmark attenuation case of Wong Sun v. United States, for example, the defendant was illegally arrested by police. (23) Several days after being released, the defendant voluntarily returned to the police station and confessed. (24) The Supreme Court found that the passage of time, combined with the defendant's voluntary choice to return and confess, meant the confession was "attenuated" from the illegal arrest and therefore admissible in court. (25)

    The Supreme Court's attenuation jurisprudence has focused exclusively on instances of police misconduct under the Fourth Amendment. (26) Since 2001, however, the state supreme courts of Maryland and Massachusetts have applied the doctrine of attenuation to cases involving the illegal eavesdropping of private citizens; cases in which no Fourth Amendment violation has occurred. (27) The application of the doctrine of attenuation outside the Fourth Amendment context presents courts with an intriguing new option when faced with the eavesdropping of private citizens. (28) It also presents several troubling questions. (29)

    At issue is the fact that the Supreme Court's attenuation cases have focused narrowly on instances of police misconduct. (30) In cases in which private citizens pass the contents of illegally intercepted conversations to police, arguably, no police misconduct has occurred. (31) Thus, courts applying attenuation analysis to eavesdropping by private citizens must rely on a constitutional test that turns specifically on "the purpose and flagrancy of the police misconduct" even when no "police misconduct" has occurred. (32) Can the test really be stretched this far? Or does attenuation amount to little more than a loophole for police to admit evidence derived from the illegal eavesdropping of private citizens?

    This Note will argue that the doctrine of attenuation was correctly applied to a private citizen's illegal eavesdropping by the Massachusetts Supreme Judicial Court in Commonwealth v. Damiano and incorrectly applied by the Maryland Court of Appeals in State v. Miles. The Note will further argue that the doctrine of attenuation is applicable to eavesdropping by private citizens and that the government can satisfy the Supreme Court attenuation test set forth in Brown v. Illinois in such cases if police do not exploit the contents of the illegally intercepted communication during the interrogation of suspects.

    Part II of the Note surveys the history of the doctrine of attenuation and the constitutional and statutory history of illegal eavesdropping. Part III examines the cases in which attenuation has been applied to the eavesdropping of private citizens. Part IV argues that attenuation analysis should only be applied to illegal eavesdropping by private citizens when the state can demonstrate police did not use or exploit the contents of the illegally intercepted message during interrogation.


    1. The Doctrine of Attenuation

      The doctrine of attenuation offers, perhaps, the best-known exception to the constitutional rule of exclusion, which requires that evidence derived from a Fourth Amendment violation be excluded or "suppressed" at trial. (33) In 1914, the Supreme Court unanimously held in Weeks v. United States (34) that evidence derived from an illegal search of a defendant's home by federal officials violated the Fourth Amendment and should be excluded at trial. (35) In 1961, the Court extended the exclusionary rule to the states in Mapp v. Ohio. (36) In Mapp, the Court held that it was "logically and constitutionally necessary ... that the exclusion doctrine--an essential part of the right to privacy--be also insisted upon as an essential ingredient of the right" to be free from unreasonable searches and seizures. (37) The Mapp Court held that illegally-seized evidence must be excluded from both federal and state courts and ruled that state officials were also bound by the Fourth Amendment. (38) Since Mapp, numerous courts have held that once a defendant has demonstrated the existence of a Fourth Amendment violation, the burden shifts to the government to prove that the resulting evidence was not "derived from" that violation. (39) Thus, evidence "derived from" the government's illegal act is suppressed by the rule of exclusion. (40)

      In their application of the rule of exclusion, courts have paid particular attention to confessions obtained following illegal searches. (41) Indeed, courts have noted that "when a suspect is confronted with evidence discovered during an illegal search," the tainted evidence can be used by police to persuade the defendant that "remaining silent" is futile. (42) The suspect, believing she is "caught red-handed," confesses without knowing the information police confronted her with was illegally obtained and inadmissible at trial. (43) Thus, courts have held that the exclusionary rule is at its apex when a confession or consent to search is "induced by confronting a suspect with illegally seized evidence" during a police interrogation. (44)

      Over time, three primary exceptions to the rule of exclusion have emerged: (1) the independent source doctrine holds that evidence authorities would have obtained through an independent source should be admitted at trial, regardless of the Fourth Amendment violation; (45) (2) the inevitable discovery doctrine mandates that evidence police would have inevitably discovered despite the violation should be admissible; (46) and finally, (3) the doctrine of attenuation provides that evidence should be admissible if the official misconduct was not blatant, and enough time...

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