The Exclusionary Rule:

The Exclusionary Rule:  The Fourth Amendment serves as the primary basis for the "Exclusionary Rule;" excluding evidence from the courtroom which would be otherwise admissible, when seized by law enforcement in violation of its terms.  (Weeks v. United States (1914) 232 U.S. 383 [58 L.Ed. 652].)

History

History:  "The exclusionary rule was originally adopted in Weeks v. United States (1914) 232 U.S. 383 [58 L.Ed. 652, . . . ], which barred evidence obtained by federal officers in violation of the Fourth Amendment.  The Supreme Court subsequently held that the rule was not constitutionally imposed upon the states.  (Wolf v. Colorado (1949) 338 U.S. 25 [93 L.Ed. 1782, . . . ]; see Breithaupt v. Abram (1957) 352 U.S. 432, 434 [1 L.Ed.2^nd 448, 450, . . . ].)  It was not until 1961, when Wolf was overruled, that the exclusionary rule was made mandatory in state prosecutions. (Mapp v. Ohio (1961) 367 U.S. 643 [6 L.Ed.2^nd 1081, . . . ]; see Schmerber v. California (1966) 384 U.S. 757, 766 [16 L.Ed.2^nd 908, 917, . . . ].)"  (People v. Bracamonte, supra, at p. 400, fn. 2.)

The Primary Purpose of the Exclusionary Rule

The primary purpose of the Exclusionary Rule "is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures."  (United States v. Calandra (1974) 414 U.S. 338 [38 L.Ed.2^nd 561]; Illinois v. Krull (1987) 480 U.S. 340 [94 L.Ed.2^nd 364]; People v. Robles (2000) 23 Cal.4^th 789, 799.)

"‘[T]he "prime purpose" of the [exclusionary] rule, if not the sole one, "is to deter future unlawful police conduct." [Citations]' (Citations)"  (Italics added; People v. Sanders (2003) 31 Cal.4^th 318, 324.)

It is also the purpose of the Fourth Amendment to "safeguard the privacy and security of individuals against arbitrary invasions by government officials."  (Camera v. Municipal Court (1967) 387 U.S. 523, 528 [18 L.Ed.2^nd 930, 935].)

An otherwise lawful seizure can violate the Fourth Amendment if it is executed in an unreasonable manner.  (United States v. Alverez-Tejeda (9^th Cir. 2007, citing United States v. Jacobsen (1984) 466 U.S. 109, 124 [80 L.Ed.2d 85].)

Evidence illegally obtained by private persons, acting in a private capacity, is not subject to the Exclusionary Rule.  (See Krauss v. Superior Court (1971) 5 Cal.3^rd 418, 421; People v. North (1981) 29 Cal.3^rd 509, 514; Jones v. Kmart Corp. (1998) 17 Cal.App.4^th 329, 332.)

Even a peace officer, when off-duty and acting in a private capacity, may be found to have acted as a private citizen.  (See People v. Wachter (1976) 58 Cal.App.3^rd 911, 920, 922.)

However, the Exclusionary Rule is not intended to prevent all police misconduct or as a remedy for all police errors.  "The use of the exclusionary rule is an exceptional remedy typically reserved for violations of constitutional rights."  (United States v. Smith (9^th Cir. 1999) 196 F.3^rd 1034, 1040.)

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

A civil rights "action under (42 U.S.C.) section 1983 "encompasses violations of federal statutory law as well as constitutional law."  (Maine v. Thiboutot (1980) 448 U.S. 1, 4, . . . 65 L.Ed.2^nd 555.)  Thus, section 1983 may be used to enforce rights created by both the United States Constitution and federal statutes.  (Gonzaga University v. Doe (2002) 536 U.S. 273, 279, . . . . 153 L.Ed.2^nd 309.)   But conduct by an official that violates only state law will not support a claim under section 1983.  (Malek v. Haun (10^th Cir. 1994) 26 F.3^rd 1013, 1016; . . .)"   (Ritschel v. City of Fountain Valley (2005) 137 Cal.App.4^th 107, 116.)

See "Remedy for Violations; The "‘Exclusionary Rule,'" below.

Rule of Exclusion:

Rule of Exclusion:  "Evidence which is obtained as a direct result of an illegal search and seizure may not be used to establish probable cause for a subsequent search."  (United States v. Wanless (9^th Cir. 1989) 882 F.2^nd 1459, 1465; see "Searches and Seizures," "Remedies for Violations," below.)

Verbal Evidence

This includes "verbal evidence," (i.e., a suspect's admissions or confession), when obtained as a direct product of an illegal detention, arrest or search.  (See United States v. Crews (9^th Cir. 2007) 502 F.3^rd 1130, 1135.)

But see People v. Madrid (1992) 7 Cal.App.4th 1888, 1896:  Evidence obtained in violation of someone else's (i.e., someone other than the present defendant's) Fourth Amendment (search and seizure) rights may be used as part of the probable cause in a search warrant affidavit, unless the defendant can show that he has "standing" (i.e., it was his reasonable expectation of privacy that was violated) to challenge the use of the evidence.

Illegal Detention

Illegal Detention:  As a "seizure" of one's person, the products of an illegal detention are also subject to being suppressed under the Exclusionary Rule.  (See People v. Krohn (2007) 149 Cal.App.4^th 1294; detaining defendant for drinking in public, when he was not in a public place, is an illegal detention and requires the suppression of the controlled substances found on his person in a subsequent consensual search.)

Fruit of the Poisonous Tree

Fruit of the Poisonous Tree: In determining where the line is between the direct products of an illegal search (which will be suppressed) and that which is not the "fruit of the poisonous tree" (which will not be suppressed), the Court ruled that the following factors are relevant: (1) The temporal proximity of the Fourth Amendment search and seizure violation to the ultimate procurement of the challenged evidence; (2) The presence of intervening circumstances; and (3) the flagrancy of the official misconduct. (People v. Rodriguez (2006) 143 Cal.App.4^th 1137.)

Exceptions

Exceptions:  

However, 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.2^nd 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 (9^th Cir. 2004) 376 F.3^rd 997.)

Also, 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.2^nd 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.3^rd 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.3^rd 877, 883-886.)

Expectation of Privacy

Expectation of Privacy:   Whether a search or seizure is "unreasonable" under the Fourth Amendment, and therefore requires the exclusion of evidence obtained thereby, turns on "whether a person has a constitutionally protected reasonable expectation of privacy, that is, whether he or she has manifested a subjective expectation of privacy in the object of the challenged search (or seizure) that society is willing to recognize as reasonable."  (Emphasis added; People v. Robles (2000) 23 Cal.4^th 789, 794.)

The United States Supreme Court has held: "Our Fourth Amendment analysis embraces two questions. First, we ask whether the individual, by his conduct, has exhibited an actual expectation of privacy; that is, whether he has shown that ‘he [sought] to preserve [something] as private.' [Citation.] . . . Second, we inquire whether the individual's expectation of privacy is ‘one that society is prepared to recognize as reasonable.' [Citation, fn. omitted.]"  (Bond v. United States (2000) 529 U.S. 334, 338 [120 S. Ct. 1462, 1465, 146 L. Ed. 2d 365, 370]; see also People v. Maury (2003) 30 Cal.4^th 342, 384.) 

Example:  A hotline for citizens to call in tips on criminal activity, advertised as guaranteeing the caller's anonymity, does not create a constitutionally protected reasonable expectation of privacy in either the caller's identity or the information provided.  It was expected that the information would be passed onto law enforcement.  The caller in this case became the suspect in the alleged crimes, thus negating any reasonable expectation to believe that the police would not determine and use his identity in the investigation.  (People v. Maury, supra, at pp. 381-403.)

Juvenile Cases

Juvenile Cases:  This same exclusionary rule applies to juvenile proceedings that are filed pursuant to the Welfare and Institutions Code.  (In re William G. (1985) 40 Cal.3^rd 550, 567, fn. 17; In re Tyrell J. (1994) 8 Cal.4^th 68, 75-76.)

On Appeal

On Appeal:  Denial of a motion to suppress evidence is reviewed by an appellate court "de novo."  (United States v. Bautista (9^th Cir. 2004) 362 F.3^rd 584, 588-589.)