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Chapter 5: Searches:
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Standing:
   Table Of Contents
      Chapter 5: Searches:
         Remedy for Violations; The Exclusionary Rule
            The Fourth Amendment
            The Fruit of the Poisonous Tree
            Exceptions:
               Private Persons
               The Good Faith Exception
               The Taint has been Attenuated
               Statutory Only Violations
               Doctrine of Inevitable Discovery
               An Injured Person
               Evidence of identity
               Impeachment Evidence

Remedy for Violations; The Exclusionary Rule

Remedy for Violations; The "Exclusionary Rule:"  Warrantless searches, performed without probable cause and without an exception to the warrant requirement (or even when a warrant is used, but where the warrant is later determined to be legally defective), subjects any recovered evidence to exclusion from being used as evidence in court.  (Weeks v. United States (1914) 232 U.S. 383 [58 L.Ed. 652].)

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The Fourth Amendment

The Fourth Amendment:  Although the Fourth Amendment was originally intended to restrict the actions of the federal government only, the same exclusionary rule, as a violation of the Fourteenth Amendment "due process" clause, is applicable to the states (which includes counties and municipalities) as well.  (Mapp v. Ohio (1961) 367 U.S. 643 [6 L.Ed.2nd 1081.)

Reasoning:  Violating one's Fourth Amendment rights is such a fundamental, important, issue that to do so is automatically a violation of the Fourteenth Amendment due process rights of the person subjected to the illegal search or seizure.

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The Fruit of the Poisonous Tree

Fruit of the Poisonous Tree:  The evidence that is suppressed is limited to the direct products of the constitutional violation; i.e., the "fruit of the poisonous tree."  (Wong Sun v. United States (1963) 371 U.S. 471 [9 L.Ed.2nd 441].) 

"Evidence obtained by such illegal action of the police is ‘fruit of the poisonous tree,' warranting application of the exclusionary rule if, ‘granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of the illegality or instead by means sufficiently distinguishable to be purged of the primary taint.'" (United States v. Crawford (9th Cir. 2004) 372 F.3rd 1048, 1054, quoting Brown v. Illinois (1975) 422 U.S. 590, at p. 599 [45 L.Ed.2nd 416].)

Examples:

Observations made after an unlawful, warrantless entry into a structure cannot be used to establish probable cause for later obtaining a search warrant.  (Murray v. United States (1988) 487 U.S. 533, 540 [101 L.Ed.2nd 472, 482]; Burrows v. Superior Court (1974) 13 Cal.3rd 238, 251.)

A consent to search given "immediately following an illegal entry or search" is invalid because it "is inseparable from the unlawful conduct."  (People v. Roberts (1956) 47 Cal.2nd 374, 377.)

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Private Persons

Private persons (unless working as an "agent of law enforcement") may violate a subject's constitutional rights without threat of suppression, in that the constitutional protections apply to government searches only.  (People v. Johnson (1947) 153 Cal.App.2nd 873.)

A licensed private investigator who is acting in furtherance of a private interest, rather than for a law enforcement or government purpose, is not subject to the restrictions of the Fourth Amendment.  (People v. Mangiefico (1972) 25 Cal.App.3rd 1041, 1046-1047; People v. De Juan (1985) 171 Cal.App.3rd 1110, 1119.)

Bail bondspersons and "Bounty Hunters," although allowed to take a defendant into custody (P.C. §§ 847.5, 1300, 1301), they are acting as private citizens and are not subject to the Exclusionary Rule.  (People v. Houle (1970) 13 Cal.App.3rd 892, 895; Landry v. A-Able Bonding, Inc. (1996) 75 F.3rd 200, 203-205.)

Even an off-duty police officer "may" not be acting as a law enforcement officer in conducting a search, when he acts in his capacity as a private citizen, and through mere curiosity.  (People v. Wachter (1976) 58 Cal.App.3rd 311, 920-923; see also People v. Peterson (1972) 23 Cal.App.3rd 883, 893; off-duty police trainee acting out of concern for his own safety.) 

Exception to Private Persons Exception:  "Agents of Law Enforcement:"

Anyone acting at the request of, or under the direction of, a law enforcement officer, is an agent of the police and is held to the same standards as the police.  (People v. Fierro (1965) 236 Cal.App.2nd 344, 347.)

Seizure of blood by a state hospital, working with law enforcement (i.e., an "agent" of law enforcement), taking and testing blood from expectant mothers and testing for drugs, held to be an illegal governmental search.  (Ferguson et al. v. City of Charleston (2001) 532 U.S. 67 [149 L.Ed.2nd 205].)

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The Good Faith Exception

The "Good Faith" Exception:  In those cases where enforcing the "Exclusionary Rule" would not advance its remedial purposes, evidence seized unlawfully will not be suppressed.  (Illinois v. Krull (1987) 480 U.S. 340, 347 [94 L.Ed.2nd 364, 373].)

See "Good Faith," below.

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The Taint has been Attenuated

The Taint has been Attenuated:  "(G)ranting establishment of the primary illegality," whether or not the resulting evidence is subject to suppression is a question of whether "the evidence . . . has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint."  (Wong Sun v. United States (1963) 371 U.S. 471, 487-488 [9 L.Ed.2nd

441, 455].) 

In determining whether the "primary taint" (i.e., an illegal search, detention or arrest) has been sufficiently "purged" requires consideration of three factors:

  • The "temporal proximity" between the illegal act and the resulting evidence.
  • The presence of any "intervening circumstances;" and
  • The "purpose and flagrancy" of the official misconduct.

(Taylor v. Alabama (1982) 457 U.S. 687, 690 [73 L.Ed.2nd 314, 319]; see also United States v. Crawford (9th Cir. 2003) 323 F.3rd 700, 719-722; Brown v. Illinois (1975) 422 U.S. 590, 600-605 [45 L.Ed.2nd 416, 425-428]; Kaupp v. Texas (2003) 538 U.S. 626, 633 [155 L.Ed.2nd 814, 822.)

A Miranda admonishment and waiver, alone, is legally insufficient to attenuate the taint of an illegal arrest.  (Brown v. Illinois, supra; Kaupp v. Texas, supra.)

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Statutory Only Violations

Statutory Only Violations:  Relevant evidence will not be suppressed unless suppression is required by the Fourth Amendment to the United States Constitution, or when a statute violated by law enforcement commands suppression by its terms.  (Cal. Const., Art. 1, § 28(d); In re Lance W. (1985) 37 Cal.3rd 873, 886-887; People v. Tillery (1989) 211 Cal.App.3rd 1569, 1579; People v. Lepeibet (1992) 4 Cal.App.4th 1208, 1212-1213.) 

See P.C. § 632, which makes it a felony for a person to eavesdrop on a "confidential communication," and that the result of any such eavesdropping will not be admissible in court.  (subd. (d))

Note:  Not all courts are in agreement that such a remedy is reserved exclusively for constitutional violations.  (See discussion in United States v. Lombera-Camorlinga (9th Cir. 2000) 206 F.3rd 882, 886-887, and in the dissenting opinion, p. 893.)

Examples of Statutory Violations Only:

  • It is not unconstitutional to make a custodial arrest (i.e., transporting to jail or court) of a person arrested for a minor misdemeanor (Atwater v. City of Lago Vista (2001) 532 U.S. 318 [149 L.Ed.2nd 549].), or even for a fine-only, infraction. ( People v. McKay (2002) 27 Cal.4th 601, 607; see also United States v. McFadden (2nd Cir. 2001) 238 F.3rd 198, 204.)
  • California's statutory provisions require the release of misdemeanor arrestees in most circumstances. (e.g., see P.C. §§ 853.5, 853.6, V.C. §§ 40303, 40500) However, violation of these statutory requirements is not a constitutional violation and, therefore, should not result in suppression of any evidence recovered as a result of such an arrest. (People v. McKay, supra, at pp. 607-619, a violation of V.C. § 21650.1 (riding a bicycle in the wrong direction); People v. Gomez (2004) 117 Cal.App.4th 531, 539, seat belt violation (V.C. § 27315(d)(1)), citing Atwater v. City of Lago Vista, supra.)
  • Custodial arrest for a misdemeanor that did not occur in the officer's presence, in violation of P.C. § 836(a)(1). (People v. Donaldson (1995) 36 Cal.App.4th 532, 539; People v. Trapane (1991) 1 Cal.App.4th Supp. 10, 12-14.)
  • A "knock and notice" violation:

Violating the terms of P.C. §§ 844 and/or 1531 (California's statutory "knock and notice" requirements) does not necessarily also violate the Fourth Amendment.  (Wilson v. Arkansas (1995) 513 U.S. 927 [131 L.Ed.2nd 976]; People v. Zabelle (1996) 50 Cal.App.4th 1282.)  Whether or not it does depends upon the circumstances.   (See "Knock and Notice," below.)

But even when such a violation is determined to have been done contrary to the dictates of the Fourth Amendment, the Exclusionary Rule has recently been held to be an inappropriate remedy, at least in most cases.  (Hudson v. Michigan (2006) 547 U.S. 586 [165 L.Ed.2nd 56].)

Per Hudson, the suppression of evidence is only necessary where the interests protected by the constitutional guarantee that has been violated would be served by suppressing the evidence thus obtained.  The interests protected by the knock and notice rules include human life, because "an unannounced entry may provoke violence in supposed self-defense by the surprised resident."  Property rights are also protected by providing residents an opportunity to prevent a forcible entry.  And, "privacy and dignity" are protected by giving the occupants an opportunity to collect themselves before answering the door.  (Ibid.)

The Court also ruled in Hudson that because civil suits are more readily available than in 1914 with the exclusionary rule was first announced, and because law enforcement officers, being better educated, trained and supervised, can be subjected to departmental discipline, suppressing the product of a knock and notice violation is no longer a necessary remedy.  (Ibid.)

The rule as dictated by Hudson (a search warrant case) is applicable as well as in a warrantless, yet lawful, arrest case, pursuant to P.C. § 844.  (In re Frank S. (2006) 142 Cal.App.4th 145.)

However, Hudson is not to be interpreted to mean that the Exclusionary Rule is to be scraped.  Intentionally unlawful law enforcement actions will still be subject to the Exclusionary Rule where necessary to discourage future illegal police activities.  (People v. Rodriguez (2006) 143 Cal.App.4th 1137; case remanded for a determination whether police fabricated probable cause for a traffic stop, which led to the discovery of an outstanding arrest warrant, the search incident thereto resulting in recovery of controlled substances.)

  • Violation of a government agency regulation (i.e., not a statute or a constitutional principle) also does not necessitate suppression of the resulting evidence. (United States v. Ani (9th Cir. 1998) 138 F.3rd 390.)
  • Possible violation of an Indian Reservation statute or rule, not involving a constitutional principle, will not result in the suppression of any evidence. (United States v. Becerra-Garcia (9th Cir. 2005) 397 F.3rd 1167, 1173.)
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Doctrine of Inevitable Discovery

Doctrine of Inevitable Discovery:  Evidence seized unlawfully will be held to be admissible in those instances where, but for the illegal search, there is a "reasonable possibility" that  the evidence would have been lawfully found by other means.  (Murray v. United States (1988) 487 U.S. 533, 539 [101 L.Ed.2nd 472]; Nix v. Williams (1984) 467 U.S. 432 [ 81 L.Ed.2nd 377]; People v. Superior Court [Walker] (2006) 143 Cal.App.4th 1183, 1214-1217.)

Inevitable discovery does not apply, however, merely because the officers had probable cause and could have gotten a search warrant.  (Hudson v. Michigan (2006) 547 U.S. 586 [165 L.Ed.2nd 56]; People v. Robles (2000) 23 Cal.4th 789; People v. Superior Court [Walker], supra, at p. 1215.)

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An Injured Person

An injured person may be searched without a warrant or probable cause.  It is reasonable for a police officer to attempt to identify an injured person.  In fact, he has a duty to do so.  Anything the officer sees in the process is admissible in court.  (People v. Gonzales (1960) 182 Cal.App.2nd 276.)

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Evidence of identity

Evidence of identity, as with defendant's person itself, is not subject to suppression, "regardless of the nature of the violation leading to his identity."  (United States v. Gudino (9th Cir. 2004) 376 F.3rd 997.)

See also United States v. Garcia-Beltran (9th Cir. 2004) 389 F.3rd 864; fingerprints used for identity purposes only are not subject to suppression for a Fourth Amendment violation (i.e., illegal arrest here).  Case remanded, however, for a determination whether defendant's fingerprints were seized for "investigatory purposes" as opposed to establish identity, in which case they are subject to suppression.

It is a rule of law that neither a person's body nor his or her identity is subject to suppression, "even if it is conceded that an unlawful arrest, search, or interrogation occurred."  (Immigration and Naturalization Service v. Lopez-Mendoza (1984) 468 U.S. 1032, 1039-1040 [82 L.Ed.2nd 778].)

For purposes of this rule, it makes no difference that the illegal arrest, search or interrogation was "egregious" in nature.  (E.g., the result of "racial profiling."  (United States v. Gudino, supra.)

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Impeachment Evidence

Impeachment Evidence:

Evidence illegally seized may be introduced for the purpose of impeaching the defendant's testimony given in both direct examination (Walder v. United States (1954) 347 U.S 62 [98 L.Ed. 503].) and cross-examination, so long as the cross-examination questions are otherwise proper.  (United States v. Havens (1980) 446 U.S. 620 [64 L.Ed.2nd 559].)

California authority prior to passage of Proposition 8 (The "Truth in Evidence Initiative"), to the effect that evidence suppressed pursuant to a motion brought under authority of P.C. § 1538.5 is suppressed for all purposes (i.e., People v. Belleci (1979) 24 Cal.3rd 879, 887-888.), was abrogated by Proposition 8.  Now, it is clear that suppressed evidence may be used for purposes of impeachment should the defendant testify and lie.  (People v. Moore (1988) 201 Cal.App.3rd 877, 883-886.)

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