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
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.
Previously, it was not at all uncommon for police to arrest without articulable suspicion or probable cause, and to illicit forced confessions by coercive techniques including physical beatings and other deprivations now considered improper and illegal.
The 1961 Mapp decision was followed by Escubedo (1964), in which the Supreme Court established that criminal suspects in police custody could not be denied the benefit of legal counsel, which is exactly what happened to my client. Likewise, under Miranda (1965), any police interrogation of my client was illegal after he specifically demanded to consult or to be represented by legal counsel.
Therefore, prior to 1960, my client might have had little recourse to establish that the circumstances of his arrest violated his Fourth Amendment right against illegal search and seizure in many states. Even where it was recognized, it would not have necessarily resulted in the exclusion of evidence seized improperly thereby. Likewise, before 1960, my client's confession may have survived any challenge arguing for its exclusion as well.
Finally, before 1960, my client's statements produced after police refused his request for legal counsel would not have been automatically excluded on that basis alone. By virtue of the combined benefit of Mapp, Escubedo, and Miranda, I anticipate complete success in excluding all of the State's evidence against my client and I expect to file a civil action on his behalf for unlawful arrest, assault, battery, and false imprisonment under color of police authority against the State as well as against Hardbutt personally after his vindication on the criminal charges.
