Criminal defense strategies in homicide cases

Criminal Defense Homicide Case

Fourth Amendment Searches and Seizures in Contemporary America

The conviction of a client charged with murder is threatened by evidence the prosecution holds. There are indications that this evidence was obtained unconstitutionally. Presumably, the exclusionary rule would be the primary vehicle for moving to have this evidence excluded. If the search and seizure was conducted without a warrant and not incident to an arrest, vehicle stop, or hot pursuit, then there is a good chance the evidence can be prevented from being presented to a jury. Any evidence obtained as a result of an illegal warrantless search would also be excluded under the "fruit of the poisonous tree" doctrine. If there was a problem with the probable cause determination or how the items searched for and seized were described in the warrant, then getting the evidence excluded will be much harder if the police can show they acted in good faith. Predicting the admissibility of evidence obtained incident to an arrest for an unrelated charge is much harder, since case law for this type of situation is filled with contradictory decisions. If the murder charge is federal in nature, then Section 213 of the PATRIOT Act authorizing clandestine searches and seizures applies. If no warrant was issued or a violation of the seven day notification deadline occurred, then this may be grounds for moving to have evidence so obtained excluded.

Introduction

Protection against arbitrary search and seizure by the state is provided by the Fourth Amendment, which states that citizens have a right "… to be secure in their persons, houses, papers, and effects, and against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The Fourth Amendment thus requires that (1) a warrant be obtained prior to searching and seizing personal property, (2) a probable cause determination be made prior to issuing the warrant, and that the persons and objects to be searched or seized are described in the warrant. Although there are many exceptions to these warrant requirements, these represent the primary determining factors for the admissibility of evidence collected by the state through searches and seizures.

The U.S. Supreme Court has chosen to enforce Fourth Amendment rights in a limited way by providing guidelines that govern the admissibility of evidence during federal and state criminal proceedings. These guidelines have come to be called the "Exclusionary Rule."

Exclusionary Rule

Old common law judged the admissibility of evidence based on its value, rather than by the method used to obtain it. The Fourth Amendment therefore represented a dramatic departure from legal tradition by stating that the privacy of citizens was at least as important as the needs of the state to invade that privacy. Providing a method for enforcing these rights required another 100 years after the Fourth Amendment was made law. In Boyd v. United States (116 U.S. 616; 1886) the Supreme Court first suggested that excluding evidence obtained in violation of the Fourth Amendment could be a way to enforce the Amendment, and 28 years later codified this sentiment in Weeks v. United States (232 U.S. 383; 1914) in what has become known as the "Exclusionary Rule" (Stephens and Glenn, 2006, p. 3).

Enforcement of the exclusionary rule in state courts finally came with the Supreme Court's decision in Mapp v. Ohio (367 U.S. 643; 1961). Justice Clark, in writing the majority opinion held that "… all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court."

Probable Cause

Determining whether an applicant for a search warrant has sufficient probable cause depends on the totality of the circumstances. Any indication that the judge or magistrate that issued the warrant was acting as a rubber stamp for the police would undermine the legality of the warrant. When a confidential informant is the source of information, then it is the duty of the judge or magistrate issuing the warrant to ensure the information so provided passes the Aguilar-Spinelli two pronged test: (1) why should I believe him and (2) does the information seem credible based on its content (Acker and Brody, 2004, pp. 156-157). If a confidential informant played an important role in leading the police to search our client's home and personal vehicle, then a close examination of the probable cause determination is warranted.

Particularity

The Fourth Amendment explicitly states that the location and objects of interest should be described in the warrant. This limits the scope of the search and prevents general warrants from being issued. The warrant should be examined for any weaknesses regarding the particularity requirement under the Fourth Amendment.

Scope of the Exclusionary Rule

In several decisions since Mapp v. Ohio the Supreme Court has limited the scope of the exclusionary rule as a deterrent, rather than a right provided for the accused. Should application of the exclusionary rule not provide a deterrent against unlawful searches, then any application would probably not be upheld by the Supreme Court. For example, unlawfully obtained evidence can be admitted into court proceedings to impeach the defendant's testimony (Stewart, 2000, p. 385).

Fruit of the Poisonous Tree

If it can be shown that the warrant was defective, and/or the police acted unlawfully, then any evidence so obtained may be inadmissible. If evidence so obtained led to searches for and seizures of additional evidence, even with a valid warrant, then this would also be inadmissible as the fruit of the poisonous tree (Acker and Brody, 2004, pp. 96-98).

Good Faith Exception

Although a warrant should be issued only upon probable cause and describe the particular objects to be searched for and where, the Supreme Court has provided an exception for police acting in good faith with a warrant that later proves to be defective through no fault of their own (Stephens and Glenn, 2006, p. 169). This suggests that even if the warrant used to search our client's property was unconstitutional under the Fourth Amendment, the good faith exception would allow the evidence to be admitted if it can be shown that the police were unaware that the warrant was defective. The value of examining a defective warrant would therefore be diminished if the fault lay with the judge or magistrate who issued it.

Relevance of Exclusionary Rule for our Client

Unconstitutionally-seized evidence can be excluded under the exclusionary rule for a variety of reasons. If this evidence led to additional seizures of evidence, it too can be excluded under the "fruit of the poisonous tree" doctrine. If the bulk of the prosecution's case relies on such evidence, then there is a chance that the judge will dismiss the case for lack of evidence. If our client takes the stand and commits perjury and the excluded evidence can impeach this testimony, then the excluded evidence can be introduced by the prosecution. If there is a chance of this occurring then it may be best to keep our client off the stand. What follows is a discussion of the numerous exceptions to the exclusionary rule when a warrantless search and seizure is justified, and under what circumstances Section 213 of the PATRIOT Act applies.

Exceptions to the Exclusionary Rule

Over the decades since Mapp v. Ohio a number of exceptions to the exclusionary rule have been decided by the courts. The following are potentially relevant to our client's situation.

Consent

If our client gave consent to the police to conduct a search, and this consent was given voluntarily with full knowledge of the right to refuse a search (Acker and Brody, 2004, p. 182), then the prosecution will probably be successful in getting their evidence admitted and presented to the jury. On the other hand, if it can be shown that the search and seizure was conducted without a warrant, or informed consent free of coercion, then this could be grounds for moving to have the evidence declared inadmissible.

Inherent Mobility of Automobiles

The protections afforded by the Fourth Amendment do not apply uniformly to motorized vehicles because the "inherent mobility" of transportation presents a unique challenge to law enforcement (Acker and Brody, 2004, p. 200). For example, if the police have probable cause to search a vehicle and then leave to obtain a warrant, the vehicle could be gone by the time they returned. Personal vehicles are also viewed by the courts as having a "diminished expectation of privacy" due to the extensive government licensing and regulations that renders them susceptible to inspection for any number of reasons and the public nature of highways and streets.

The fruits of warrantless vehicle searches are therefore admissible if probable cause existed prior to the search (Acker and Brody, 2004, pp. 208-209). With probable cause the police can conduct a warrantless search of an automobile and this authority extends to all packages and containers that may be stored in the vehicle. The reverse is not true though, in that probable cause to search a container or package stored in a vehicle cannot provide justification for searching the rest of the vehicle.

Incident to a Lawful Arrest

Several exceptions exist that allow searches of vehicles without probable cause. These include a search incident to the arrest of the vehicle's driver or passengers if there is reasonable suspicion that weapons or evidence could be concealed within the vehicle, or as the result of the police impounding the vehicle (Acker and Brody, 2004, pp. 172, 208, 212). This prevents the arrestee from gaining control of a weapon that could affect their arrest or endanger the arresting officers, and to prevent the destruction of any evidence. The scope of a search incident to an arrest was limited by the majority opinion in Chimel v. California (395 U.S. 752; 1969), which held that warrantless searches and seizures beyond the immediate vicinity of the arrestee are not justified. Searches that extended beyond the immediate vicinity of the arrestee, such as other rooms in a house, are also not justified without a warrant.

The case law in searches incident to a lawful arrest is filled with contradictory rulings. For example, in Illinois v. Caballes (543 U.S. 834; 2005) the Supreme Court's majority opinion upheld the admissibility of evidence obtained from the trunk of a vehicle, following an exterior vehicle search by a drug-sniffing dog incident to a traffic stop for a speeding ticket. This ruling is consistent with the "inherent mobility" and "diminished expectation of privacy" principles attributed to personal vehicles, but inconsistent with the "immediate vicinity" principle to secure weapons and evidence. In addition, no reasonable or probable cause justification existed for the officers to conduct such a search. In our client's case, if the evidence the prosecutor is intending to present was obtained incident to an arrest, then this case law will have to be revisited in more detail.

During Hot Pursuit

The Supreme Court has repeatedly supported police pursuit of criminals into their homes in the immediate aftermath of the crime, when time is of the essence to prevent the criminal from endangering others or destroying evidence (Acker and Brody, 2004, pp. 189-182). If our client was being actively pursued by the police for the crime he was accused of committing and this pursuit resulted in a traffic stop or led the police to our client's home, then the subsequent warrantless search for weapons and evidence would be hard to challenge. Even if the hot pursuit was for a crime unrelated to the charge of murder our client is currently faced with, evidence found during a justified hot pursuit search and seizure would likely be admissible.