The investigative Process

Constitutional Law: Criminal Investigations

The likelihood that the magistrate will admit the marijuana cigarettes into evidence at the preliminary hearing is very low. With respect to the initial contact between Officer Hardbutt and Harry Hiphop, Hardbutt lacked probable cause of any crime. Consequently, Hardbutt's arrest of Harry was illegal. Therefore, Hardbutt's search of Hiphop was illegal and any contraband discovered thereby will probably be excluded under the "fruit of the poisonous tree" doctrine.

The State will likely argue that the contraband was not discovered during a search incident to an illegal arrest, but only pursuant to a permissible pat down or "Terry Search" frisk for weapons initiated out of Hardbutt's concern for (his) officer safety and that at the time, Hiphop was not yet subject to an arrest, but only an investigative detention. This argument will not likely prevail, because a reasonable person would have considered himself under arrest as of the moment that he was not free to leave the squad car and certainly after prolonged detention at the police station.

Likewise, the argument that the contraband was discovered during a permissible Terry Search pat down rather than an illegal search or a search incident to arrest will not prevail, because: (1) Hardbutt had no reasonable or articulable suspicion to initiate any search of Hiphop in the first place, (2) Hiphop was under arrest as of the moment that he reasonably perceived himself to have lost his right to refuse to accompany Hardbutt or to remove himself from the squad car, and (3) the breath mint container could not have reasonably been perceived as a weapon, and therefore, Hiphop retained his Fourth Amendment rights with respect to the contraband discovered therein by virtue of the illegal search.

The likelihood that the magistrate will admit Harry's confession into evidence is virtually nonexistent. Hiphop's admission was the product of an illegal interrogation,

His admission was coerced by virtue of his having been denied the opportunity to relieve himself or have access to water for six hours of interrogation. According to the specific facts as presented, Hiphop was "scared, exhausted, and thoroughly intimidated" which is precisely the type of police conduct prohibited in all states since the Escubedo (1964).

In that respect, the refusal to terminate any interrogation once Hiphop asked to be allowed to consult his attorney rendered any confession elicited subsequently patently unconstitutional. The State may try to argue that six hours is not an unreasonably or excessively long period of time to deprive a prisoner of sleep, food and water, or the opportunity to relieve himself.

That argument will be rejected as to every element except sleep. In any case, the detailed circumstances of the interrogative process itself are virtually moot, because Hardbutt's continuation of questioning after refusing Hiphop's request for his attorney renders any subsequent confession fatally unconstitutional irrespective of any other factors.

There is virtually no chance that the magistrate will admit the cocaine and methamphetamine into evidence either, because they are also the direct product of an illegal warrantless search pursuant to an illegal arrest that generated an illegal interrogation. The State will likely argue that no warrant was required by virtue of Hiphop's consent to the search, because he voluntarily brought Officer Hardbutt to the premises and then voluntarily disclosed the whereabouts of the drugs.

The State will likely argue that the search of the premises with Hiphop's consent was separable and distinct from any interrogation or evidence seized pursuant to a search of Hiphop's person and clothing whether incident to the arrest or pursuant to a Terry frisk. These State arguments will be rejected because the search of the premises was not separable from the illegal arrest and interrogation. Rather, the illegal arrest generated an illegal search of Hiphop's person, followed by an illegal arrest and an illegal interrogation. As such, the subsequent admission about the contraband at the premises was indeed part of the illegal interrogation. Therefore, Hiphop's defacto consent by virtue of taking Hardbutt onto the premises was not given freely but coerced directly by the illegal interrogation. The likelihood that the magistrate will admit the deer carcass into evidence is very small. Hardbutt had no warrant to search the premises for contraband of any kind. His presence at the premises was a product of the coercive interrogation rather than any freely-given consent to search secured through legal means.

The State will argue that no warrant was required for Hardbutt to search the premises because Hiphop consented to the search and voluntarily allowed Hardbutt onto the premises. Therefore, even if the drugs are excluded as the subject of the interrogation, the deer carcass was never discussed in the interrogation and that the deer carcass was simply discoverable as it was in plain sight.

The State will likely argue that the confession about the deer carcass was separable from the confession pursuant to the earlier interrogation at the police station and given freely. Once on the premises, Hiphop had access to food and water and lavatory facilities and he simply responded spontaneously to Hardbutt's questions..

The State's strongest argument against exclusion of the deer carcass is in the event that it was visible from the public property surrounding the residence. In principle, had Hardbutt discovered the carcass without entering onto private property, his subsequent ordinary police investigation would have been permissible. The State may further stretch and even argue that the inevitable discovery rule articulated in the 1977 "Christian burial" case (Brewer) applies to the carcass if it was visible from public property.

In light of all the circumstances surrounding the illegal arrest, interrogation, and premises search, the evidence of the deer carcass will be excluded completely under the fruit of the poisonous tree doctrine. If Hardbutt obtained consent to enter and search the premises, it was purely by virtue of the illegal arrest and subsequent interrogation.

My prospects for success are much better than they would have been in 1960.

Prior to 1960, approximately half the states had not accepted the exclusionary rule for evidence obtained through impermissible methods like coercion or forced self-incrimination. Those concepts had already been established since the 1886 Boyd case and the 1914 Weeks decision, but Weeks applied only to the federal government until individual state supreme courts chose to incorporate it into state law following California's lead in the 1955 Cahan decision. The exclusionary rule was not applied to all the states until the 1961 Mapp decision, when the U.S. Supreme Court ruled that the Due Process applied to all the states under the Fourteenth Amendment.

The 1960s also marked a very significant change in police conduct with respect to constitutional rights against illegal arrest, search and seizure apart from the subsequent issue of excluding impermissibly obtained evidence. These changes were at least as important to my anticipated success defending Hiphop, because any invocation of the exclusionary rule is necessarily predicated on the application of constitutional principles governing arrest, search, and seizure in the first place.