Viktor Bérces: Evidence in Criminal Proceedings
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Chapter V. The Anglo-Saxon system of evidence today
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5.3. Characteristics of the US evidence system
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5.3.4. Prohibitions on evidence
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5.3.4.2. Interpreting the primary exclusion rules from a case law perspective

5.3.4.2. Interpreting the primary exclusion rules from a case law perspective

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Several provisions of the Constitution deal with the substance of the prohibitions on taking evidence:

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  • Under the Fourth Amendment to the Constitution, every person has the right to be secure in his person, dwelling, and other personal property, against unreasonable or unwarranted search and seizure; [thus] a search and seizure warrant may be issued only upon reasonable suspicion or upon sworn testimony as to the whereabouts of certain persons or things.1
  • The Fourteenth Amendment generally declares the principle of a fair trial.
 

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First of all, it should be noted that the Fourth Amendment only sets out constitutional standards for searches and seizures, but does not set out the penalties for their unlawful execution. However, this is supplemented by the Fourteenth Amendment, from which it is already possible to deduce, indirectly, the prohibition of all unlawful coercive acts by public authorities and the general prohibition of the use of evidence derived from such acts.

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The Supreme Court has first and foremost ruled against the federal exclusionary rule for evidence obtained in violation of these constitutional rules.2 As the Court later explained, without this decision, “the Fourth Amendment would be nothing more than a bunch of empty words.”3 The principle subsequently became a mandatory rule of law in the criminal procedure of the Member States, and has been confirmed by subsequent case law:

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  1. In “Wolf v. Colorado” (1949), the Supreme Court stated that “the prohibition of arbitrary intrusion by an investigating authority into the private life of a person is a fundamental requirement for the establishment of a free and independent society”. The corollary of this is that the rules of the Fourth Amendment must be applied in the criminal proceedings of the states, subject to the due process principles of the Fourteenth Amendment. 4
  2. In “Rochin v. California” (1952), the Supreme Court approached the application of the exclusionary rule on a different constitutional basis: the historical facts were that
    • police entered the home of a suspect at night without a search warrant;
    • when the suspect woke up, he swallowed the pills that the police were looking for, which were classified as drugs, in order to avoid being found by the authorities;
    • the police held him down and tried to get the pills out of his mouth;
    • the attempt was unsuccessful, and the subject was handcuffed, taken to hospital and ordered to have his stomach flushed out to retrieve the capsules;
    • the doctor complied, and the drugs were found;
    • the person who had been declared incriminated for the above reasons, moved in the court of first instance that the pills should not be taken into account as incriminating evidence, since they had been obtained through the use of official force;
    • when the case was brought to the Supreme Court, it found that the police officers’ conduct was unfair and cruel, and therefore excluded the capsules from the proceedings as evidence obtained illegally.5
    It can therefore be concluded that, while the Court in Wolf sought to derive the applicability of the exclusionary rule primarily from the interpretation of the Fourth Amendment, the Rochin case brought to the fore the principle of due process as formulated in the Fourteenth Amendment and, in this context, introduced a sense of social justice into the applicability of the exclusionary rule. It should be noted that in subsequent decisions, the Court has stated in principle that the guidelines in Rochin can only be applied where the unlawful conduct of the public authority is (1) directed against a person and (2) the evidence is obtained by force. 6
  3. In the case of “Mapp vs. Ohio” (1961), the police were investigating a bombing and entered a house because one of the potential suspects was believed to be there:
    • when the police first asked for permission to enter the house, the homeowner called her lawyer, who advised her client not to let anyone into her home without a search warrant;
    • after three hours of surveillance, the police returned, still without a “proper” search warrant, knocked again and announced the search, but the owner did not answer, so the police broke the front door;
    • the owner was presented with a piece of paper claiming to be a search warrant; the owner ripped the piece of paper out of the police’s hands and placed it in his underwear;
    • a struggle ensued between one of the officers and the owner, the officer twisted the owner’s arm behind his back and removed the “warrant” from his underwear; later, the entire apartment was searched, but neither the suspect nor evidence of a bombing was found.
    The procedural anomaly was caused by the fact that the police, independently of the case under investigation, found obscene objects the possession of which was in itself a criminal offence (eventually leading to proceedings against the owner of the flat). The Supreme Court in this case inferred the illegality of the evidence from the combined violation of the two constitutional amendments.7
  4. In United States v. Calandra (1974), the Supreme Court had already begun the process of eroding the exclusionary rule by holding that it could not be directly derived from the Constitution. By virtue of its decision, these rules were essentially “de-constitutionalized”, while retaining their purpose of deterring public officials from engaging in unconstitutional and unethical acts.8 (It should be noted that the idea of abolishing the exclusionary rule altogether has been mooted in contemporary legal literature.9 This can only be achieved, however, if the exclusionary rule is replaced by a forum for redress – civil or administrative – capable of ensuring the exercise of constitutional rights in relation to search and seizure. )10
  5. In “Elkins v. United States” (1960), the Supreme Court held that “the exclusionary rule was intended to prevent the violation of Fourth Amendment rights, not to redress the injury.”11 The question to be decided, therefore, is whether this rule is at all adequate to prevent unlawful searches and seizures.12

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According to those who advocate abolishing the exclusionary rule, it is not suitable for this task because (1) it is too indirect and too weak a form of punishment;13 (2) other law enforcement authorities tend to be sympathetic to these offences, so excluding evidence may not deter the average police officer;14 (3) the exclusion of evidence as a “sanction” against the police is often disproportionate to the offences committed by the police;15 (4) the exclusionary rule also often results in disproportionality, as it applies to the negligent misconduct of a bona fide officer in the same way as it applies to the deliberate conduct of a bad faith officer, and it does not distinguish between serious offences and minor offences.16 However, according to those who argue in favour of maintaining the exclusion rule, the intrinsic purpose of this rule is not specific but general prevention, i.e. it satisfies a public legal need.17
 

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The weakening of the exclusionary rule can be continuously traced in the Supreme Court’s case law, and in addition, US jurisprudence has created a number of legal institutions in recent decades that can be considered as exceptions to this principle. These include the following possibilities:

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  1. In the case of so-called “non-trial proceedings,18 evidence obtained unconstitutionally can be used in advance.
  2. The prosecutor may present evidence in criminal proceedings that was obtained in violation of the accused’s Fourth Amendment rights (impeachment). This rule applies when the prosecutor’s purpose is to impeach the accused’s direct testimony or to impeach the accused’s answers to specific questions asked during a lineup.19
  3. Evidence obtained in violation of the rules on the notification of searches may also be used under the “knock-and-announce” rule.20 The precedent-setting decision in Hudson vs. Michigan” (2006), in which investigating officers went to an apartment where cocaine and an illegally held gun were found with a valid search warrant, but committed a procedural violation by waiting only 3-5 seconds after knocking and announcing,21 before forcibly entering.
    The Supreme Court reasoned, however, that the exclusionary rule could not be applied in this case because (1) it should be considered as a last resort; (2) the drugs or firearms would have been found even if the waiting period had been sufficient;22 (3) the exclusion of evidence that had come to light during the procedural violation would not serve the interests of the knock and announce rule.
  4. The creation of the “police culpability factor” is essentially the result of four decisions:
    In “Leon v. United States” (1984), the police conducted a search based on an apparently valid – in fact invalid – search warrant. The Supreme Court, however, on the basis of the principle of good faith, did not exclude evidence obtained in the course of the coercive measure in question, but ruled in principle that in such cases (1) the involvement of a police officer with practical experience who had reason to believe in the validity of the warrant was necessary, and (2) the warrant must be properly executed.23 However, the so-called “Leon rule” does not apply where
    • the officer who issued the search warrant (1) relied on information provided by a colleague who knew that the allegations in the document were false;24 or (2) considered the obtaining of evidence to be the only priority, and therefore was not actually representing the interests of justice but the interests of the prosecution;25
    • there are no reasonable grounds to suspect,26 or
    • the error in the search warrant issued is obvious because it does not specify the place of search or the property to be seized.27
 

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In “Illinois v. Krull” (1987), an administrative warrant search was conducted, resulting in the seizure of stolen property. The defendant moved for a finding of evidentiary illegality on the ground that the ordinance on which the search was based was later held unconstitutional. The Supreme Court nevertheless did not exclude the evidence obtained in this way, as it considered that the legislator’s failure to act could not be imputed to the police.28

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In the case of “Arizona vs. Evans” (1995), the defendant was arrested during a general traffic stop for failure to have a valid arrest warrant. The defendant subsequently moved to exclude the drugs found on him during the stop as evidence obtained illegally, on the grounds that the arrest warrant was unconstitutional. However, the Supreme Court did not rule out the admissibility of the drugs found for use at trial, since the arresting officer had relied in good faith on the electronic records.29

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In Herring v. United States (2009), the defendant was arrested by the police in his county of residence on a warrant from a neighboring county police database and subsequently searched. During this search, drugs and illegally possessed firearms were seized from the defendant’s residence. Later in the proceedings, it was discovered that the arrest warrant for the suspect had been revoked months earlier, but had not been removed from the electronic database by the police station of the neighbouring county due to negligence. During the proceedings, the defendant argued that since his arrest was already illegal, the subsequent search was also illegal, and therefore he moved to exclude from evidence the items found and seized. The Supreme Court, however, did not see the exclusionary rule as applicable in the case, as it was “designed to prevent deliberate, reckless or grossly negligent conduct […] but in the present case the police misconduct did not rise to that level”, and there was merely a case of occasional police negligence.30
1 232 U.S. 383 (1914). In Gácsi ibid. 25.
2 In Weeks v. United States (1914), it held that the Fourth Amendment precludes the use of evidence obtained by federal law enforcement officers in an unconstitutional manner. In Gácsi ibid. 25.
3 “Silverthorne Lumber Co. vs. United States” case (1920). In Gácsi ibid. 25.
4 However, the decision also contained a restrictive provision whereby national courts are not obliged to exclude from their proceedings all evidence obtained unconstitutionally (through unjustified searches or seizures), which may include evidence that could be “logically relevant” – decisive evidence. In Dressler–Michaels (2010) 348. In Gácsi ibid. 35.
5 Dressler–Michaels (2010) ibid. 349. In: Gácsi ibid. 36.
6 Gácsi (2015) ibid. 36.
7 Dressler–Michaels (2010) i.p. 171–174; 369–371. In: Gácsi i.p. 37–38.
8 Dressler–Michaels ibid. 353; 369–371. In: Gácsi ibid. 38.
9 See “Hudson vs. Michigan” case (2006). In Gácsi ibid. 38.
10 Dressler–Michaels ibid. 353. In: Gácsi (2015) ibid. 39.
11 364 U.S. 206 (1960) In: Gácsi (2015) ibid. 40.
12 Dressler–Michaels ibid. 356. In: Gácsi (2015) ibid. 40.
13 Slobogin, Christopher: Why Liberals Should Chuck the Exclusionary Rule? University of Illinois Law Review, 1999/2. 374–377. In Gácsi (2015) ibid. 40.
14 Wasby, Stephen L.: Police Training About Criminal Procedure: Infrequent and Inadequate, Policy Studies Journal (7) 1978. 466.
15 “Bivens vs. Six Unknow Named Agents” case (1971). In Gácsi ibid. 41.
16 The potentially dangerous offender can avoid criminal prosecution even if the offence committed by the police officer was of minor importance. In Kamisar, Yale. Michigan Law Review, (86) 1987. 1–50. In Gácsi ibid. 41.
17 Mertens, William J. – Wasserstrom, Silas: The Good Faith Exception to the Exclusionary Rule: Deregulating the Police and Derailing the Law. Georgetown Law Review (70) 1981. p. 365–463. p. In Gácsi ibid. 41.
18 E.g. bail proceedings, probation revocation proceedings, preliminary hearing.
19 I note that the Supreme Court in James v. Illinois (1990) clarified this possibility by stating that “evidence obtained in violation of the defendant’s Fourth Amendment rights may not be used to impeach the credibility of any witnesses called by the defense.” The Court reasoned that, in such a case, the accused’s right to a fair trial would be impaired by the fact that the accused would not dare to bring witnesses into the criminal proceedings if their credibility could be challenged by the prosecution on the basis of evidence obtained in an unlawful manner. If this were to be approved by the Supreme Court, the literature argues, it would not lead to any improvement in the truth-seeking process; on the other hand, it would significantly weaken confidence in the exclusionary rule. In Gácsi ibid. 45.
20 In principle, this rule protects human life and limb – since an unexpected (unannounced) intrusion may trigger a self-defensive reaction in the person concerned; the property rights of the person searched against damage caused by forced entry; the right to privacy of the person concerned. Dressler–Michaels (2010) ibid. 171. In: Gácsi ibid. 47.
21 The practice is to wait 20-30 seconds.
22 However, according to Gácsi, the Court made a procedural-dogmatic error at this point: it confused the independent source doctrine with another exception, the fruit of the poisonous tree, the inevitable discovery rule. In Gácsi (2015) ibid. 47.
23 468 U.S. 897 (1984) In: Gácsi ibid. 49.
24 See “Franks vs. Delaware” case (1978). In Gácsi ibid. 49.
25 See the case of “Lo-Ji Sales Inc. v. New York” (1979). In: Gácsi ibid. 49.
26 See “Illinois vs. Gates” (1983). In Gácsi ibid. 50.
27 See the Groh vs. Ramirez case (2004). In Gácsi ibid. 50.
28 480 U.S. 340 (1987) In: Gácsi ibid. 50.
29 514 U.S. 1 (1995) In: Gácsi ibid. 51.
30 129 S.Ct. 695 (2009). In Gácsi (2015) ibid. 52.
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