Abstract
In the English common law, all evidence was admissible in court regardless of how it was gathered, perhaps with the exception of statements which were the product of torture or other cruel treatment. The United States, with its 1791 Bill of Rights, however, was the first country to recognize that evidence gathered in the violation of constitutional rights—such as the Fourth Amendment right to be free of unreasonable searches and seizures, or those conducted without a well-founded search warrant, and the Fifth Amendment privilege against self-incrimination—was inadmissible in court. This Chapter traces the evolution of U.S. constitutional exclusionary rules from the 1914 Weeks case and 1961 Mapp case, dealing with the Fourth Amendment and the 1967 Miranda decision dealing with the Fifth Amendment, up to its modern jurisprudence. The doctrines of “fruits of the poisonous tree”, referring to evidence (often physical) derived indirectly from constitutional violations, and its exceptions of “independent source” and “inevitable discovery”, along with an exception for “good faith” have been since adopted in many countries. The “fall” of the constitutional exclusionary rule, refers to recent doctrine, which is carving out more exceptions and is returning to the original common law position of presumed admissibility of evidence, and use of a “balancing” test which will only exclude evidence if the constitutional violations were intentional and egregious.
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Notes
- 1.
367 U.S. 643 (1961).
- 2.
377 U.S. 201 (1964).
- 3.
348 U.S. 436 (1966).
- 4.
See, e.g., Hopt v. Utah, 110 U.S. 574, 585 (1884).
- 5.
Bram v. United States, 168 U.S. 532 (1897).
- 6.
Brown v. Mississippi, 297 U.S. 278 (1936).
- 7.
Weeks v. United States, 232 U.S. 383 (1914).
- 8.
See, e.g., Tucker v. State, 128 Miss. 211 (1922).
- 9.
389 U.S. 347 (1967).
- 10.
Amsterdam (1974, 403).
- 11.
United States v. White, 401 U.S. 745 (1971).
- 12.
Smith v. Maryland, 442 U.S. 735 (1979).
- 13.
California v. Ciraolo, 476 U.S. 207 (1986).
- 14.
Florida v. Riley, 488 U.S. 445 (1989).
- 15.
United States v. Knotts, 460 U.S. 276 (1983).
- 16.
United States v. Karo, 468 U.S. 705 (1984).
- 17.
Kyllo v. United States, 533 U.S. 27 (2001).
- 18.
As Justice Clarence Thomas commented in one recent case, “our cases stand for the illuminating proposition that warrantless searches are per se unreasonable, except, of course, when they are not.” Groh v. Ramirez, 540 U.S. 551, 573 (2004) (Thomas, J., dissenting).
- 19.
See, e.g., Warden v. Hayden, 387 U.S. 294 (1967).
- 20.
See, e.g., California v. Acevedo, 500 U.S. 565 (1991).
- 21.
See, e.g., Schneckloth v. Bustamonte, 412 U.S 218 (1973)
- 22.
See, e.g., South Dakota v. Opperman, 428 U.S. 364 (1976).
- 23.
United States v. The La Jeune Eugenie, 26 F. Cas. 832, 844 (Cir. Mass.,1822).
- 24.
See, e.g., Commonwealth v. Dana, 43 Mass. 329, 337 (1841).
- 25.
116 U.S. 616 (1886).
- 26.
232 U.S. 383 (1914).
- 27.
Ibid, 391–92.
- 28.
Ibid, 393.
- 29.
Ibid, 398.
- 30.
338 U.S. 25 (1949).
- 31.
367 U.S. 643 (1961).
- 32.
Ibid, 657.
- 33.
Ibid, 655.
- 34.
Ibid.
- 35.
Ibid, 656 (quoting Elkins v. United States, 364 U.S. 206, 217 (1960)).
- 36.
468 U.S. 897 (1984).
- 37.
Ibid, 905.
- 38.
Ibid, 906 (quoting United States v. Calandra, 414 U.S. 338, 454 (1974)).
- 39.
Ibid, (quoting United States v. Calandra, 414 U.S. 338, 454 (1974)).
- 40.
Ibid, (quoting United States v. Calandra, 414 U.S. 338, 348 (1974)).
- 41.
Leon, 468 U.S. at 935 (Brennan, J., dissenting).
- 42.
Ibid, 932–933.
- 43.
People v. Defore, 242 N.Y. 13, 22 (1926).
- 44.
251 U.S. 385 (1920).
- 45.
Ibid, 392.
- 46.
Ibid.
- 47.
The fruit of the poisonous tree metaphor was first suggested in an opinion by Justice Frankfurter in a case involving the admissibility of evidence obtained as a result of a violation of a federal statute, Nardone v. United States, 308 U.S. 338 (1939), but was later extended to the constitutional exclusionary rule as well. Wong Sun v. United States, 371 U.S. 471 (1963).
- 48.
New York ex rel. Hatch v. Reardon, 204 U.S. 152, 160 (1907).
- 49.
Jones v. United States, 362 U.S. 257, 261 (1960).
- 50.
See, e.g., Rakas v. Illinois, 439 U.S. 128, 157 (1978) (White, J. dissenting) (stating that decision that passengers qua passengers do not have standing to contest search of car amounts to declaring “open season” on search of cars as far as passengers are concerned).
- 51.
447 U.S. 727 (1980).
- 52.
Ibid, 733.
- 53.
Ibid, 735.
- 54.
People v. Mayen, 188 Cal. 237 (1922).
- 55.
People v. Martin, 45 Cal.2d 755 (1955).
- 56.
California Constitution Article 1 Section 28(f)(2). The California Supreme Court held in In re Lance W., 37 Cal.3d 873, (1985) that this language was intended to permit exclusion of relevant, but unlawfully obtained evidence, only if exclusion is required by the United States Constitution.
- 57.
The independent source doctrine was first recognized by the USSC in dicta in Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920). After holding that the prosecution could not use information gleaned from documents that were obtained through an illegal search to subpoena those same documents, the Court stated, “Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others”. Ibid, 392.
- 58.
487 U.S. 533 (1988).
- 59.
Ibid, 537 (quoting Nix v. Williams, 467 U.S. 431, 443 (1984)).
- 60.
467 U.S. 431 (1984).
- 61.
Nix v. Williams involved a violation of the Sixth Amendment right to counsel rather than a violation of the Fourth Amendment right against unreasonable search and seizure. Although the Supreme Court has not applied the inevitable discovery doctrine in the context of a Fourth Amendment violation there is no doubt that it is applicable in that context as well.
- 62.
371 U.S. 471 (1963).
- 63.
Ibid, 491 (quoting Nardone v. United States, 308 U.S. 338, 341 (1939)).
- 64.
422 U.S. 590 (1975).
- 65.
Ibid, 609 (1975) (Powell, J. concurring in part).
- 66.
Ibid, 612.
- 67.
547 U.S. 586 (2006).
- 68.
Ibid, 594.
- 69.
468 U.S. 897 (1984).
- 70.
Ibid, 906 (quoting United States v. Calandra, 414 U.S. 338, 348 (1974)).
- 71.
Ibid, 907 (quoting United States v. Payner, 447 U.S. 727, 734 (1980)).
- 72.
Ibid, 916.
- 73.
Ibid, 918.
- 74.
Ibid, 919 (quoting United States v. Peltier, 422 U.S. 531, 539 (1975)).
- 75.
Ibid, 920 (quoting Stone v. Powell, 428 U.S. 465, 539–540 (1976)) (White, J., dissenting).
- 76.
Ibid, 920–21.
- 77.
468 U.S. 981 (1984).
- 78.
The error resulted from the magistrate’s failure to strike out inapplicable language contained in form warrant application. The police officer who executed the warrant failed to discover the error because he relied on the magistrate’s assurance that the necessary modifications had been made.
- 79.
480 U.S. 340 (1987).
- 80.
514 U.S. 1 (1995).
- 81.
555 U.S. 135 (2009).
- 82.
547 U.S. 586 (2006).
- 83.
Ibid, 592.
- 84.
Ibid.
- 85.
Ibid.
- 86.
Ibid.
- 87.
Ibid, 594.
- 88.
Ibid, 595.
- 89.
Ibid.
- 90.
Ibid, 596.
- 91.
Ibid, 597–599.
- 92.
See Hopt v. Utah, 110 U.S. 574 (1884)
- 93.
168 U.S. 532 (1897).
- 94.
297 U.S. 278 (1936).
- 95.
Malloy v. Hogan, 378 U.S. 1 (1964).
- 96.
Spano v. New York, 360 U.S. 315 (1959).
- 97.
Arizona v. Fulminante, 499 U.S. 279 (1991).
- 98.
437 U.S. 385 (1978). See also New Jersey v. Portash, 440 U.S. 450 (1979).
- 99.
384 U.S. 436 (1966).
- 100.
The Miranda doctrine was controversial from the start. Even the rule’s supporters acknowledge that the Court’s decision has a legislative quality to it that is atypical of the incrementalism and case-by-case approach to law making that generally characterizes common law decision-making. Miranda’s critics contend that the USSC has the power to enforce the commands of the constitution but it does not have the authority to establish procedures to prevent the constitution from being violated. The Miranda scheme has also been criticized on the ground that it goes too far in discouraging suspects from making lawful, voluntary confessions. While the impact of Miranda in reducing the frequency of confessions is disputed, the case clearly has not eliminated police interrogation as a mechanism for gathering evidence for trial, as some opponents had predicted.
- 101.
Miranda, 384 U.S. at 458.
- 102.
Ibid, 457.
- 103.
401 U.S. 222 (1971).
- 104.
Mincy v. Arizona, 437 U.S. 385 (1978).
- 105.
417 U.S. 433 (1974).
- 106.
The questioning of the defendant that produced the statement occurred before the Miranda decision was announced, but its requirements were nonetheless applicable retroactively because the trial occurred afterwards. The Court cited as one reason for finding that the Miranda rule did not require exclusion of the testimony of the witness discovered as a result of the Miranda violation the fact that the deterrent benefit of exclusion was diluted by the fact that officer who obtained the confession was acting in good faith.
- 107.
Michigan v. Tucker, 417 U.S. 433, 444.
- 108.
470 U.S. 298 (1985).
- 109.
Ibid, 305.
- 110.
Ibid, 306.
- 111.
Ibid, 310–311.
- 112.
Another case that seemed to deny the core premises of Miranda is New York v. Quarles, 467 U.S. 649 (1984). In Quarles the Court held that a statement obtained without Miranda warnings is admissible if the questioning that elicited the statement was “reasonably prompted by a concern for the public safety.” As the dissent pointed out, it is one thing to approve questioning without warnings in the interest of public safety, but it does not follow that the suspect’s response be admissible at a later criminal trial.
- 113.
166 F.3d 667 (4th Cir. 1999).
- 114.
530 U.S. 428 (2000).
- 115.
Ibid, 438.
- 116.
Ibid, 440.
- 117.
Ibid, 432.
- 118.
Ibid, 446 (Scalia, J., dissenting).
- 119.
538 U.S. 760 (2003).
- 120.
542 U.S. 630 (2004).
- 121.
Ibid, 641 (plurality opinion).
- 122.
Ibid, 642 (plurality opinion). On the same day the Court announced the Patane decision it issued its decision in Missouri v. Seibert, 542 U.S. 600 (2004). Seibert involved the admissibility of a statement which, though preceded by Miranda warnings and a waiver by the defendant, was obtained through the use of a deliberate two-stage interrogation technique in which police first obtain a statement without giving Miranda warnings and then elicit substantially the same statement after an administration of warnings. The Court held the second statement inadmissible on the grounds that the deliberate elicitation of the first statement in violation of Miranda rendered the Miranda warnings given prior to the second statement ineffective. Although the case was not decided on exclusionary rule grounds, a clear majority of the Justices in Seibert endorsed the view that the poisonous tree doctrine is not relevant “for analyzing the admissibility of a subsequent warned confession following ‘an initial failure... to administer the warnings required by Miranda’”. Ibid, 612, n.4, (plurality opinion) (quoting Oregon v. Elstad, 470 U.S 298, 300 (1985)).
- 123.
377 U.S. 201 (1964).
- 124.
Massiah was decided in 1964, 2 years before the Court decided Miranda, and it was generally assumed that Miranda’s Fifth Amendment based approach to the regulation of pre-trial interrogation had entirely supplanted the right to counsel doctrine announced in Massiah. However, the Supreme Court breathed new life into the Massiah doctrine in the 1977 case of Brewer v. Williams, 430 U.S. 387 (1977).
- 125.
See Fellers v. United States, 540 U.S. 519 (2004).
- 126.
Kansas v. Ventris, 129 S.Ct. 1841, 1846 (2009).
- 127.
Tomkovicz (2007, 746–747).
- 128.
Massiah v. United States, 377 U.S. 201, 207.
- 129.
A third case, Michigan v. Harvey, 494 U.S. 344 (1990) dealt with the exclusionary rule for violations of the rule announced in Michigan v. Jackson, 475 U.S. 625 (1986) that limited the defendant’s ability to waive the right to counsel after it had been invoked. The Jackson gloss on the Massiah rule was abolished in 2009. Montejo v. Louisiana, 556 U.S. 778, 129 S.Ct. 2079 (2009).
- 130.
467 U.S. 431 (1984).
- 131.
556 U.S. 586, 129 S.Ct. 1841 (2009).
- 132.
Ibid, 1845.
- 133.
Ibid.
- 134.
Ibid.
- 135.
Ibid, 1846.
- 136.
Ibid.
- 137.
Ibid.
- 138.
Ibid. To describe as merely disingenuous the Court’s response to the argument that elicitation of statements from a charged defendant is not intrinsically unlawful would be overly generous. After making the irrelevant point that it works no violation of the right to counsel if the defendant is questioned about a crime for which he has not been charged, the Court writes that “[w]e have never said … that officers may badger counseled defendants about charged crimes so long as they do not use information they gain.” Ibid. The question, of course, is not whether it violates the Sixth Amendment to “badger” defendants but whether it is a violation to elicit information from them. The Court in Massiah stated unequivocally that it is not.
- 139.
555 U.S. 135 (2009).
- 140.
Ibid, 140 (quoting Hudson v. Michigan, 547 U.S. 586, 591 (2006)).
- 141.
Ibid, 141 (quoting Pennsylvania Bd of Prob. and Parole v. Scott, 524 U.S. 357, 364–365 (1998)).
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Tomkovicz, J.J. 2007. Saving Massiah from Elstad: The admissibility of successive confessions following a deprivation of counsel. William & Mary Bill of Rights Journal 15: 711–764.
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Cammack, M.E. (2013). The United States: The Rise and Fall of the Constitutional Exclusionary Rule. In: Thaman, S. (eds) Exclusionary Rules in Comparative Law. Ius Gentium: Comparative Perspectives on Law and Justice, vol 20. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-5348-8_1
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