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or the law and administration of justice,’’ 399 as well as free guilty defendants. 400 No longer does the Court declare that ‘‘[t]he essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.’’ 401 Although the exclusionary rule has not been completely repudiated, its utilization has been substantially curbed. Initial decisions chipped away at the rule’s application. Defendants who themselves were not subjected to illegal searches and seizures may not object to the introduction of evidence illegally obtained from co-conspirators or codefendants, 402 and even a defendant whose rights have VerDate Apr<15>2004 09:55 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00072 Fmt 8222 Sfmt 8222 C:\CONAN\CON028.SGM PRFM99 PsN: CON028 AMENDMENT 4—SEARCHES AND SEIZURE 1353 403 United States v. Havens, 446 U.S. 620 (1980); Walder v. United States, 347 U.S. 62 (1954). Cf. Agnello v. United States, 269 U.S. 20 (1925) (now vitiated by Havens). The impeachment exception applies only to the defendant’s own testimony, and may not be extended to use illegally obtained evidence to impeach the testimony of other defense witnesses. James v. Illinois, 493 U.S. 307 (1990). 404 Stone v. Powell, 428 U.S. 465 (1976). 405 Wong Sun v. United States, 371 U.S. 471, 487-88 (1963); Alderman v. United States, 394 U.S. 165, 180-85 (1969); Brown v. Illinois, 422 U.S. 590 (1975); Taylor v. Alabama, 457 U.S. 687 (1982). United States v. Ceccolini, 435 U.S. 268 (1978), refused to exclude the testimony of a witness discovered through an illegal search. Because a witness was freely willing to testify and therefore more likely to come forward, the application of the exclusionary rule was not to be tested by the standard applied to exclusion of inanimate objects. Deterrence would be little served and relevant and material evidence would be lost to the prosecution. In New York v. Harris, 495 U.S. 14 (1990), the Court refused to exclude a station-house confession made by a suspect whose arrest at his home had violated the Fourth Amendment because, even though probable cause had existed, no warrant had been obtained. And in Segura v. United States, 468 U.S. 796 (1984), evidence seized pursuant to warrant obtained after an illegal entry was admitted because there had been an independent basis for issuance of a warrant. This rule applies as well to evidence observed in plain view during the initial illegal search. Murray v. United States, 487 U.S. 533 (1988). See also United States v. Karo , 468 U.S. 705 (1984) (excluding consideration of tainted evidence, there was sufficient untainted evidence in affidavit to justify finding of probable cause and issuance of search warrant). 406 Michigan v. DeFillippo, 443 U.S. 31 (1979) (statute creating substantive criminal offense). Statutes that authorize unconstitutional searches and seizures but which have not yet been voided at the time of the search or seizure may not create this effect, however, Torres v. Puerto Rico, 442 U.S. 465 (1979); Ybarra v. Illinois, 444 U.S. 85 (1979). This aspect of Torres and Ybarra was to a large degree nullified by Illinois v. Krull, 480 U.S. 340 (1987), rejecting a distinction between substantive and procedural statutes and holding the exclusionary rule inapplicable in the case of a police officer’s objectively reasonable reliance on a statute later held to violate the Fourth Amendment. Similarly, the exclusionary rule does not require suppression of evidence that was seized incident to an arrest that was the result of a clerical error by a court clerk. Arizona v. Evans, 514 U.S. 1 (1995). 407 United States v. Calandra, 414 U.S. 338 (1974). been infringed may find the evidence coming in, not as proof of guilt, but to impeach his testimony. 403 Defendants who have been convicted after trials in which they were given a full and fair opportunity to raise claims of Fourth Amendment violations may not subsequently raise those claims on federal habeas corpus, because the costs outweigh the minimal deterrent effect. 404 Evidence obtained through a wrongful search and seizure may sometimes be used in the criminal trial, if the prosecution can show a sufficient attenuation of the link between police misconduct and obtaining of the evidence. 405 If an arrest or a search which was valid at the time it was effectuated becomes bad through the subsequent invalidation of the statute under which the arrest or search was made, evidence obtained thereby is nonetheless admissible. 406 A grand jury witness was not permitted to refuse to answer questions on the ground that they were based on evidence obtained from an unlawful search and seizure, 407 and federal tax authorities were permitted to use in a civil proceeding evidence found to have been un- VerDate Apr<15>2004 09:55 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00073 Fmt 8222 Sfmt 8222 C:\CONAN\CON028.SGM PRFM99 PsN: CON028 1354 AMENDMENT 4—SEARCHES AND SEIZURE 408 United States v. Janis, 428 U.S. 433 (1976). Similarly, the rule is inapplicable in civil proceedings for deportation of aliens. INS v. Lopez-Mendoza, 468 U.S. 1032 (1984). 409 Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357 (1998). 410 468 U.S. 897 (1984). The same objectively reasonable ‘‘good-faith’’ rule now applies in determining whether officers obtaining warrants are entitled to qualified immunity from suit. Malley v. Briggs, 475 U.S. 335 (1986). 411 The opinion was joined by Chief Justice Burger, and by Justices Blackmun, Powell, Rehnquist, and O’Connor. Justice Blackmun also added a separate concurring opinion. Dissents were filed by Justice Brennan, joined by Justice Marshall, and by Justice Stevens. 412 468 U.S. at 907. 413 468 U.S. at 916-17. 414 468 U.S. at 919, 921. 415 468 U.S. 981 (1984). constitutionally seized from defendant by state authorities. 408 The rule is inapplicable in parole revocation hearings. 409 The most severe curtailment of the rule came in 1984 with adoption of a ‘‘good faith’’ exception. In United States v. Leon, 410 the Court created an exception for evidence obtained as a result of officers’ objective, good-faith reliance on a warrant, later found to be defective, issued by a detached and neutral magistrate. Justice White’s opinion for the Court 411 could find little benefit in applying the exclusionary rule where there has been good-faith reliance on an invalid warrant. Thus, there was nothing to offset the ‘‘substantial social costs exacted by the [rule].’’ 412 ‘‘The exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates,’’ and in any event the Court considered it unlikely that the rule could have much deterrent effect on the actions of truly neutral magistrates. 413 Moreover, the Court thought that the rule should not be applied ‘‘to deter objectively reasonable law enforcement activity,’’ and that ‘‘[p]enalizing the officer for the magistrate’s error . . . cannot logically contribute to the deterrence of Fourth Amendment violations.’’ 414 The Court also suggested some circumstances in which courts would be unable to find that officers’ reliance on a warrant was objectively reasonable: if the officers have been ‘‘dishonest or reckless in preparing their affidavit,’’ if it should have been obvious that the magistrate had ‘‘wholly abandoned’’ his neutral role, or if the warrant was obviously deficient on its face (e.g., lacking in particularity). The Court applied the Leon standard in Massachusetts v. Sheppard, 415 holding that an officer possessed an objectively reasonable belief that he had a valid warrant after he had pointed out to the magistrate that he had not used the standard form, and the magistrate had indicated that the necessary changes had been incorporated in the issued warrant. VerDate Apr<15>2004 09:55 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00074 Fmt 8222 Sfmt 8222 C:\CONAN\CON028.SGM PRFM99 PsN: CON028 AMENDMENT 4—SEARCHES AND SEIZURE 1355 416 Illinois v. Krull , 480 U.S. 340 (1987). The same difficult-to-establish qualifications apply: there can be no objectively reasonable reliance ‘‘if, in passing the statute, the legislature wholly abandoned its responsibility to enact constitutional laws,’’ or if ‘‘a reasonable officer should have known that the statute was unconstitutional.’’ 480 U.S. at 355. 417 Dissenting Justice O’Connor disagreed with this second conclusion, suggesting that the grace period ‘‘during which the police may freely perform unreasonable searches . . . creates a positive incentive [for legislatures] to promulgate unconstitutional laws,’’ and that the Court’s ruling ‘‘destroys all incentive on the part of individual criminal defendants to litigate the violation of their Fourth Amendment rights’’ and thereby obtain a ruling on the validity of the statute. 480 U.S. at 366, 369. 418 The whole thrust of analysis in Leon dealt with reasonableness of reliance on a warrant. The Court several times, however, used language broad enough to apply to warrantless searches as well. See, e.g., 468 U.S. at 909 (quoting Justice White’s concurrence in Illinois v. Gates): ‘‘the balancing approach that has evolved . . . ‘forcefully suggest[s] that the exclusionary rule be more generally modified to permit the introduction of evidence obtained in the reasonable good-faith belief that a search or seizure was in accord with the Fourth Amendment’’’; and id. at 919: ‘‘[the rule] cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity.’’ 419 See Yale Kamisar, Gates, ‘Probable Cause’, ‘Good Faith’, and Beyond, 69 IOWA L. REV. 551, 589 (1984) (imposition of a good-faith exception on top of the ‘‘already diluted’’ standard for validity of a warrant ‘‘would amount to double dilution’’). 420 See, e.g., Illinois v. Rodriguez, 497 U.S. 177 (1990) (upholding search premised on officer’s reasonable but mistaken belief that a third party had common authority over premises and could consent to search); Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (no requirement of knowing and intelligent waiver in consenting to warrantless search); New York v. Belton, 453 U.S. 454 (1981) (upholding warrantless search of entire interior of passenger car, including closed containers, The Court then extended Leon to hold that the exclusionary rule is inapplicable to evidence obtained by an officer acting in objectively reasonable reliance on a statute later held violative of the Fourth Amendment. 416 Justice Blackmun’s opinion for the Court reasoned that application of the exclusionary rule in such circumstances would have no more deterrent effect on officers than it would when officers reasonably rely on an invalid warrant, and no more deterrent effect on legislators who enact invalid statutes than on magistrates who issue invalid warrants. 417 It is unclear from the Court’s analysis in Leon and its progeny whether a majority of the Justices would also support a good-faith exception for evidence seized without a warrant, although there is some language broad enough to apply to warrantless seizures. 418 It is also unclear what a good-faith exception would mean in the context of a warrantless search, since the objective reasonableness of an officer’s action in proceeding without a warrant is already taken into account in determining whether there has been a Fourth Amendment violation. 419 The Court’s increasing willingness to uphold warrantless searches as not ‘‘unreasonable’’ under the Fourth Amendment, however, may reduce the frequency with which the good-faith issue arises in the context of the exclusionary rule. 420 VerDate Apr<15>2004 09:55 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00075 Fmt 8222 Sfmt 8222 C:\CONAN\CON028.SGM PRFM99 PsN: CON028 1356 AMENDMENT 4—SEARCHES AND SEIZURE as incident to arrest of driver); United States v. Ross, 456 U.S. 798 (1982) (upholding warrrantless search of movable container found in a locked car trunk). 421 Jones v. United States, 362 U.S. 257, 261 (1960). That is, the movant must show that he was ‘‘a victim of search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of search or seizure directed at someone else.’’ Id. See Alderman v. United States, 394 U.S. 165, 174 (1969). 422 Rakas v. Illinois, 439 U.S. 128, 139 (1978). 423 Id. at 140. 424 Previously, when ownership or possession was the issue, such as a charge of possessing contraband, the Court accorded ‘‘automatic standing’’ to one on the basis, first, that to require him to assert ownership or possession at the suppression hearing would be to cause him to incriminate himself with testimony that could later be used against him, and, second, that the government could not simultaneously as- Operation of the Rule: Standing.—The Court for a long period followed a rule of ‘‘standing’’ by which it determined whether a party was the appropriate person to move to suppress allegedly illegal evidence. Akin to Article III justiciability principles, which emphasize that one may ordinarily contest only those government actions that harm him, the standing principle in Fourth Amendment cases ‘‘require[d] of one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he allege, and if the allegation be disputed that he establish, that he himself was the victim of an invasion of privacy.’’ 421 The Court recently has departed from the concept of ‘‘standing’’ to telescope the inquiry into one inquiry rather than two. Finding that ‘‘standing’’ served no useful analytical purpose, the Court has held that the issue of exclusion is to be determined solely upon a resolution of the substantive question whether the claimant’s Fourth Amendment rights have been violated. ‘‘We can think of no decided cases of this Court that would have come out differently had we concluded . . . that the type of standing requirement . . . reaffirmed today is more properly subsumed under substantive Fourth Amendment doctrine. Rigorous application of the principle that the rights secured by this Amendment are personal, in place of a notion of ‘standing,’ will produce no additional situations in which evidence must be excluded. The inquiry under either approach is the same.’’ 422 One must therefore show that ‘‘the disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect.’’ 423 The Katz reasonable expectation of privacy rationale has now displaced property-ownership concepts which previously might have supported either standing to suppress or the establishment of an interest that has been invaded. Thus, it is no longer sufficient to allege possession or ownership of seized goods to establish the interest, if a justifiable expectation of privacy of the defendant was not violated in the seizure. 424 Also, it is no longer sufficient that VerDate Apr<15>2004 09:55 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00076 Fmt 8222 Sfmt 8222 C:\CONAN\CON028.SGM PRFM99 PsN: CON028 AMENDMENT 4—SEARCHES AND SEIZURE 1357 sert that defendant was in possession of the items and deny that it had invaded his interests. Jones v. United States, 362 U.S. 257, 261-265 (1960). See also United States v. Jeffers, 342 U.S. 48 (1951). But in Simmons v. United States, 390 U.S. 377 (1968), the Court held inadmissible at the subsequent trial admissions made in suppression hearings. When it then held that possession alone was insufficient to give a defendant the interest to move to suppress, because he must show that the search itself invaded his interest, the second consideration was mooted as well, and thus the ‘‘automatic standing’’ rule was overturned. United States v. Salvucci, 448 U.S. 83 (1980) (stolen checks found in illegal search of apartment of the mother of the defendant, in which he had no interest; defendant could not move to suppress on the basis of the illegal search); Rawlings v. Kentucky, 448 U.S. 98 (1980) (drugs belonging to defendant discovered in illegal search of friend’s purse, in which he had no privacy interest; admission of ownership insufficient to enable him to move to suppress). 425 Rakas v. Illinois, 439 U.S. 128 (1978) (passengers in automobile had no privacy interest in interior of the car; could not object to illegal search). United States v. Padilla, 508 U.S. 77 (1993) (only persons whose privacy or property interests are violated may object to a search on Fourth Amendment grounds; exerting control and oversight over property by virtue of participation in a criminal conspiracy does not alone establish such interests). Jones v. United States, 362 U.S. 257 (1960), had established the rule that anyone legitimately on the premises could object; the rationale was discarded but the result in Jones was maintained because he was there with permission, he had his own key, his luggage was there, he had the right to exclude and therefore a legitimate expectation of privacy. Similarly maintained were the results in United States v. Jeffers, 342 U.S. 48 (1951) (hotel room rented by defendant’s aunts to which he had a key and permission to store things); Mancusi v. DeForte, 392 U.S. 364 (1968) (defendant shared office with several others; though he had no reasonable expectation of absolute privacy, he could reasonably expect to be intruded on only by other occupants and not by police). 426 E.g., Rawlings v. Kentucky, 448 U.S. 98 (1980) (fearing imminent police search, defendant deposited drugs in companion’s purse where they were discovered in course of illegal search; defendant had no legitimate expectation of privacy in her purse, so that his Fourth Amendment rights were not violated, although hers were). one merely be lawfully on the premises in order to be able to object to an illegal search; rather, one must show some legitimate interest in the premises that the search invaded. 425 The same illegal search might, therefore, invade the rights of one person and not of another. 426 Again, the effect of the application of the privacy rationale has been to narrow considerably the number of people who can complain of an unconstitutional search. VerDate Apr<15>2004 09:55 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00077 Fmt 8222 Sfmt 8222 C:\CONAN\CON028.SGM PRFM99 PsN: CON028 VerDate Apr 14 2004 11:04 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00078 Fmt 8221 Sfmt 8221 C:\CONAN\CON028.XXX PRFM99 PsN: CON028 1359 FIFTH AMENDMENT RIGHTS OF PERSONS CONTENTS Page Indictment by Grand Jury ........................................................................................................ 1361 Double Jeopardy ........................................................................................................................ 1367 Development and Scope ..................................................................................................... 1367 Reprosecution Following Mistrial ...................................................................................... 1373 Reprosecution Following Acquittal .................................................................................... 1377 Acquittal by Jury ......................................................................................................... 1378 Acquittal by the Trial Judge ...................................................................................... 1379 Trial Court Rulings Terminating Trial Before Verdict ............................................ 1380 Reprosecution Following Conviction ................................................................................. 1381 Reprosecution After Reversal on Defendant’s Appeal .............................................. 1381 Sentence Increases ...................................................................................................... 1384 ‘‘For the Same Offence’’ ...................................................................................................... 1386 Legislative Discretion as to Multiple Sentences ....................................................... 1386 Successive Prosecutions for ‘‘The Same Offense’’ ..................................................... 1388 The ‘‘Same Transaction’’ Problem .............................................................................. 1390 Self-Incrimination ...................................................................................................................... 1392 Development and Scope ..................................................................................................... 1392 The Power to Compel Testimony and Disclosure ............................................................ 1403 Immunity ..................................................................................................................... 1403 Required Records Doctrine ......................................................................................... 1406 Reporting and Disclosure ............................................................................................ 1407 Confessions: Police Interrogation, Due Process, and Self-Incrimination ....................... 1411 The Common Law Rule .............................................................................................. 1412 McNabb-Mallory Doctrine .......................................................................................... 1413 State Confession Cases ............................................................................................... 1414 From the Voluntariness Standard to Miranda ......................................................... 1418 Miranda v. Arizona ..................................................................................................... 1420 The Operation of the Exclusionary Rule .......................................................................... 1431 Supreme Court Review ............................................................................................... 1431 Procedure in the Trial Courts .................................................................................... 1433 Due Process ............................................................................................................................... 1434 History and Scope ............................................................................................................... 1434 Scope of the Guaranty ................................................................................................. 1436 Procedural Due Process ..................................................................................................... 1438 Generally ...................................................................................................................... 1439 Administrative Proceedings: A Fair Hearing ............................................................ 1440 Aliens: Entry and Deportation ................................................................................... 1443 Judicial Review of Administrative Proceedings ........................................................ 1445 Substantive Due Process .................................................................................................... 1447 Discrimination ............................................................................................................. 1447 Congressional Police Measures .................................................................................. 1450 Congressional Regulation of Public Utilities ............................................................ 1451 Congressional Regulation of Railroads ...................................................................... 1452 VerDate Apr 15 2004 08:33 May 19, 2004 Jkt 077500 PO 00000 Frm 00001 Fmt 8221 Sfmt 8221 C:\CONAN\CON029.XXX PRFM99 PsN: CON029 1360 AMENDMENT 5—RIGHTS OF PERSONS Due Process—Continued Substantive Due Process—Continued Taxation ....................................................................................................................... 1453 Retroactive Taxes ........................................................................................................ 1454 Deprivation of Property: Retroactive Legislation ..................................................... 1456 Bankruptcy Legislation ............................................................................................... 1459 Right to Sue the Government ..................................................................................... 1460 Congressional Power to Abolish Common Law Judicial Actions ............................. 1460 Deprivation of Liberty: Economic Legislation ........................................................... 1461 National Eminent Domain Power ..................................................................................... 1461 Overview ...................................................................................................................... 1461 Public Use .................................................................................................................... 1463 Just Compensation ...................................................................................................... 1467 Interest .................................................................................................................. 1469 Rights for Which Compensation Must Be Made ............................................... 1469 Consequential Damages ...................................................................................... 1471 Enforcement of Right to Compensation ............................................................. 1472 When Property Is Taken ............................................................................................. 1473 Government Activity Not Directed at the Property .......................................... 1473 Navigable Waters ................................................................................................. 1474 Regulatory Takings .............................................................................

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