This article: http://www.daytondailynews.com/localnews/content/localnews/daily/1028rape.html
has a story about a guy who robbed an apartment, and found child porn photos in the residence, including snapshots of his own young sister. Apparently, he turned himself in so that he could hand in this evidence to prosecute the owner of the photos. Is this legally admissible for a trial?
That’s an interesting question. In the future, if the police wanted to search an apartment, they could just find someone to break in and steal something. Oh the implications…
If not, it should give the authorities justification to get a search warrant and investigate the perv… err suspect.
As long as he was not acting on behalf of the police, the evidence should be admissible.
Barry
What if he had mailed the evidence in anonymously, would that have been enough for the police to obtain a warrant to search the rest of the apartment?
I think that a judge would have to decide if that was suffient cause, but I don’t see why that is any different from a situation where somebody phones in an anonymous tip that criminal activity is going on. As long as the “anonymous tip” is legitmate and not just a policeman pretending, it should justify a search warrant.
Barry
An anonymous tip can justify a search warrant? Don’t they need some kind of “hard” evidence or investigation first? At least some photos or multiple witnesses? I’m not questioning your understanding of the law, it just seems a bit harsh to search someone’s house just because someone “said” something illegal was going on there.
How can the police be sure the guy who broke in didn’t plant the evidence? The man has admitted to an illegal entry, so he’s not the most upstanding citizen and he’s got a bit of a credibility problem.
I doubt this will have any evidenciary value.
Basically, an anonymous tip can justify a search warrant, if a judge agrees that it’s credible enough to create probable cause. That could be that the informant is only sort of anonymous (no name given, but it’s someone that the police have spoken to before and who has given them good information), or that the tip itself contained information that could be corroborated before getting the warrant, or other indications of veracity.
I very much doubt that you could get a search warrant solely on the basis of an anonymous note saying “ccwaterback does drugs” without more.
Moderator’s Note: Changed thread title.
ENugent is right on the money.
Anonymous tips are not per se unreliable, but they must contain sufficient indicia of reliability to show that the tipster was in a position to be familiar with the criminal circumstances.
The Constitution protects people against government action. The burglar was certainly not acting as an agent of the government when he broke in. His report can, if specific enough, serve as a the basis for probable cause for a search warrant, and the fruits of that search would certainly be admissible at trial.
The argument you make goes to the weight of the evidence, not its admissibility.
A house in our neighborhood (pretty upscale, by the way) was rented to a couple of guys who, it turned out, were dope dealers and were using the place as a safe house. Every so often one of them would stay overnight, but for the most part it stood empty, and the neighbors knew that something wasn’t right, but took no action.
A local kid broke into the house one night, and discovered guns, drugs, and over a hundred grand in cash. Recognizing that he was in WAY over his head, he got the hell out of there and went to his father, who took him in to talk to the local police. Based on his information, the police obtained and executed a search warrant, and on the basis of what they found during the search, issed arrest warrants for the dealers, who have not as of this writing returned to the area.
The kid went through the diversion program and, presumably, is back on the straight and narrow, at least for now.
How is this different, in principal, from the authorities catching someone involved in a crime and accepting a plea bargain from them in exchange for valid information implicating someone else in a more serious crime?
This guy whose home was burglarized was a registered sex offender, right?
What if this guy went into his house knowing that and just hoping that there’d be something there to bust him with?
Even if he didn’t, would it be a good idea for the prosecutors to go easy on this burglar and maybe send a message that you’ll get off easy if you break into a sex-offender’s house or you think your neighbor’s a pedophile?
Would that encourage vigilantism?
As for admissibility, it seems in my non-expert opinion that as long as this burglar was not acting as an agent of the police when he broke in, the photos would be admissible as evidence.
The problem with allowing evidence of this kind is that it allows law enforcement to subcontract out searches. An oral agreement to a plea deal ahead of time, maybe even an under the table payment, and they can search anywhere, anytime, without cause. There’s no practical way to tell when the whole thing is a charade. That’s just not good.
Bottom line as far as I’m concerned: the cops need due cause to obtain a warrant if they want to use the products of a search in court. It shouldn’t be easier for someone else who isn’t supposed to be able to conduct a search at all.
That’s it. If the cops did not send the burglar in, barring other exclusionary arguments, the porn will come in.
As for informants,
Bricker provides a good summary of the Aguilar v. Spinelli (sp?) test – always viewed under Gates (1983), the “totality of the circumstances” which overruled AvS. So we have (paraphrasing) “1) basis for knowledge and 2) indicia of reliability.” from AvS modified by the Gates “totality of the circumstances” test.
Note to laypersons: Have some coffee, it usually kept me from falling asleep in law school.
A side note: the child molester could sue the burglar for trespassing or the tort of “intrusion.” That’s his only remedy. Good luck!
Note to Beagle: What the hell do I have to do with this?
The 4th amendment only applies to state actors. If the state “subcontracts” out the work, then the people doing it are considered agents of the state. Ergo, you can’t do that. Of course, if people are going to lie about it, there isn’t much you can do. BTW, many, if not most, searches are done without a warrant anyway because there are so many exceptions to the requirement.
You want to know what will really piss you off? Try this on, the police willfully and intentionally illegally break in to person A’s house where they find evidence implicating person B in a crime. (Say, the murder weapon B used to kill C, to keep it simple, assume B doesn’t live with A). Heck, maybe A & B conspired to kill C. B has no standing to object to the illegal search of A’s house, and thus the evidence is admissable against B. Now, with the murder weapon in hand, the state can try to, and probably will, get A to plead guilty to murder and conspiracy and implicate B in the crimes.
Shit, I scrwed up my own example. The state will get B to plead guilty and implicate A in the crimes, even though the evidence was taken illegaly from A’s house.