# Exclusionary Rule Question/Debate
**URL:** https://boards.straightdope.com/t/exclusionary-rule-question-debate/514733
**Category:** Great Debates
**Created:** [October 22, 2009, 2:09pm UTC](https://boards.straightdope.com/t/exclusionary-rule-question-debate/514733 "2009-10-22T14:09:10Z")
**Posts on this page:** 20
**Page:** 1
### Author:  [@villa](https://boards.straightdope.com/u/villa)
#### Post date: [October 22, 2009, 2:09pm UTC](https://boards.straightdope.com/t/exclusionary-rule-question-debate/514733/1 "2009-10-22T14:09:10Z")
I’ll preface this with the statement that I am a big fan of the exclusionary rule - the idea that evidence obtained in violation of the constitution cannot be used against someone. It’s not anywhere near as absolute as is portrayed on TV, though, and last night I got into a discussion with a (fellow attorney) friend about one situation which we both agreed should be covered, but weren’t sure if it would be.
A majore exception to the rule is the idea that evidence is excluded against the person whose rights have been violated, not other people.
So the scenario we were discussing is as follows:
The police, _sans_ warrant or probable cause, kick down the door of Person A, finding evidence of that person’s involvement in a crime. The evidence is not admissible against Person A.
The evidence, however, also implicates Person B for the same crime. The evidence is admissible, I believe, against Person B, because Person B’s rights have not been violated in the evidence gathering process.
So the police arrest and charge Person B. In exchange for a lesser sentence, Person B provides evidence against Person A.
So the question part of this for our criminal defense friends is whether the evidence provided by Person B is subject to the exclusionary rule as fruit of the poisonous tree…
The debate part is whether it should be. My gut feeling is yes as it would seem to undermine the entire purpose of the rule to allow such evidence.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [October 22, 2009, 2:24pm UTC](https://boards.straightdope.com/t/exclusionary-rule-question-debate/514733/2 "2009-10-22T14:24:13Z")
> [@villa](#):
>
> The evidence, however, also implicates Person B for the same crime. The evidence is admissible, I believe, against Person B, because Person B’s rights have not been violated in the evidence gathering process.
Correct. Person B cannot vicariously assert Person A’s Fourth Amendment rights.
> [@](#):
>
> So the question part of this for our criminal defense friends is whether the evidence provided by Person B is subject to the exclusionary rule as fruit of the poisonous tree…
No, it’s not. You’re looking for a sort of totem-pole extension to the exclusionary rule here, and to my knowledge it’s never been adopted anywhere. If Person B can testify against person A, the mere fact that his testimony is induced by a plea bargain which was in turn induced by evidence against him which would not be admissible directly against Person A is of no moment.
Consider a pair of robbery suspects. There’s no evidence against Charlie, but Dave’s face was seen by the clerk, and the clerk heard Dave say that Charlie was the second suspect. Clearly Dave may be induced to testify against Charlie by a plea bargain deal, the underlying evidence for which is itself inadmissible against Charlie.
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### Author:  [@wonky](https://boards.straightdope.com/u/wonky)
#### Post date: [October 22, 2009, 2:27pm UTC](https://boards.straightdope.com/t/exclusionary-rule-question-debate/514733/3 "2009-10-22T14:27:16Z")
Would it change things if instead of in exchange for a lesser sentence, Person B’s property were searched and evidence about Person A were found?
Great question, by the way.
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### Author:  [@villa](https://boards.straightdope.com/u/villa)
#### Post date: [October 22, 2009, 2:30pm UTC](https://boards.straightdope.com/t/exclusionary-rule-question-debate/514733/4 "2009-10-22T14:30:56Z")
> [@Bricker](#):
>
> No, it’s not. You’re looking for a sort of totem-pole extension to the exclusionary rule here, and to my knowledge it’s never been adopted anywhere. If Person B can testify against person A, the mere fact that his testimony is induced by a plea bargain which was in turn induced by evidence against him which would not be admissible directly against Person A is of no moment.
That was indeed my gut feeling; my colleague felt it would be excluded, but, in his defense, neither of us do criminal law and there had been many frosty adult beverages consumed and he might not have fully understood the hypo.
> [@Bricker](#):
>
> Consider a pair of robbery suspects. There’s no evidence against Charlie, but Dave’s face was seen by the clerk, and the clerk heard Dave say that Charlie was the second suspect. Clearly Dave may be induced to testify against Charlie by a plea bargain deal, the underlying evidence for which is itself inadmissible against Charlie.
I think hearsay is a different scenario - the purpose behind the hearsay rule is to ensure accuracy, and accuracy isn’t impacted by allowing Dave’s testimony. But the purpose behind the exclusionary rule is to prevent the violation fo constitutional rights - removing the incentive for police to do it. That clearly is impacted in my hypo.
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### Author:  [@villa](https://boards.straightdope.com/u/villa)
#### Post date: [October 22, 2009, 2:32pm UTC](https://boards.straightdope.com/t/exclusionary-rule-question-debate/514733/5 "2009-10-22T14:32:00Z")
> [@jsgoddess](#):
>
> Would it change things if instead of in exchange for a lesser sentence, Person B’s property were searched and evidence about Person A were found?
>
> Great question, by the way.
Exactly where I was going mentally on this. That to me is even more clearly FOTPT.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [October 22, 2009, 2:37pm UTC](https://boards.straightdope.com/t/exclusionary-rule-question-debate/514733/6 "2009-10-22T14:37:53Z")
> [@villa](#):
>
> I think hearsay is a different scenario - the purpose behind the hearsay rule is to ensure accuracy, and accuracy isn’t impacted by allowing Dave’s testimony. But the purpose behind the exclusionary rule is to prevent the violation fo constitutional rights - removing the incentive for police to do it. That clearly is impacted in my hypo.
OK, forget the hearsay. The clerk can identify only Dave, period. Dave can clearly be induced by plea bargain to testify that his partner was Charlie, but there is no other evidence against Charlie. No change in the analysis.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [October 22, 2009, 2:41pm UTC](https://boards.straightdope.com/t/exclusionary-rule-question-debate/514733/7 "2009-10-22T14:41:20Z")
> [@jsgoddess](#):
>
> Would it change things if instead of in exchange for a lesser sentence, Person B’s property were searched and evidence about Person A were found?
> [@villa](#):
>
> Exactly where I was going mentally on this. That to me is even more clearly FOTPT.
I don’t follow… the cops search A’s house _sans_ warrant. They find evidence jointly implicating A and B. The evidence is inadmissible as to A, but admissible against B.
Now B’s house is searched, also without warrant but with the consent of B, obtained by threat of prosecution? Or simply without either a warrant or consent? And in this second search, evidence inculpating A is found?
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### Author:  [@villa](https://boards.straightdope.com/u/villa)
#### Post date: [October 22, 2009, 2:45pm UTC](https://boards.straightdope.com/t/exclusionary-rule-question-debate/514733/8 "2009-10-22T14:45:32Z")
> [@Bricker](#):
>
> OK, forget the hearsay. The clerk can identify only Dave, period. Dave can clearly be induced by plea bargain to testify that his partner was Charlie, but there is no other evidence against Charlie. No change in the analysis.
OK - but aren’t we still missing the constitutional aspect here?
If the illegally obtained evidence led to another piece of evidence, which the police would not otherwise have found, it is excludable as FOTPT. And that is what is happenig here, except that the fruit is in the form of a statement from a person who would nto have provided that statement absent the constitutional violation of someone else’s rights.
The fact that plea bargains can be used to extract evidence isn’t the focus of the debate. That they can is somewhat problematic for the justice system, but is another argument.
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### Author:  [@villa](https://boards.straightdope.com/u/villa)
#### Post date: [October 22, 2009, 2:48pm UTC](https://boards.straightdope.com/t/exclusionary-rule-question-debate/514733/9 "2009-10-22T14:48:25Z")
> [@Bricker](#):
>
> I don’t follow… the cops search A’s house _sans_ warrant. They find evidence jointly implicating A and B. The evidence is inadmissible as to A, but admissible against B.
>
> Now B’s house is searched, also without warrant but with the consent of B, obtained by threat of prosecution? Or simply without either a warrant or consent? And in this second search, evidence inculpating A is found?
Well - the initial search is of A’s house. Evidence found joinly implicates them. The police go get a warrant to arrest B, and, in the process of said arrest, find evidence that jointly implicates A and B in B’s house. Maybe they both have a video tape of them committing the crime. The Police then use this video tape as evidence to arrest A.
The problem to me is that this evidence would never have been obtained absent the constitutional violation. It would therefore seem to be covered by the FOTPT doctrine. Were we to take B out of the loop, the situation is clearer I think. Police kick down A’s door, find evidence - non admissible. That evidence leads them to a storage locker, which contains more evidence. That evidence is also inadmissible (absent proof from the police they would have found it otherwise).
What is it about adding Person B to the situation that changes things re the purpose and constitutional underpinnings of the exclusionary rule?
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### Author:  [@wonky](https://boards.straightdope.com/u/wonky)
#### Post date: [October 22, 2009, 2:49pm UTC](https://boards.straightdope.com/t/exclusionary-rule-question-debate/514733/10 "2009-10-22T14:49:36Z")
> [@Bricker](#):
>
> I don’t follow… the cops search A’s house _sans_ warrant. They find evidence jointly implicating A and B. The evidence is inadmissible as to A, but admissible against B.
>
> Now B’s house is searched, also without warrant but with the consent of B, obtained by threat of prosecution? Or simply without either a warrant or consent? And in this second search, evidence inculpating A is found?
I don’t know enough about the law to know what legal landmines I’m stepping across. My thought wasn’t that clear.
I just wondered if in the original hypothetical, the fact that Person B was giving away information in a plea agreement was of deep significance that would change if instead the same information were gathered via search.
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### Author:  [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)
#### Post date: [October 22, 2009, 2:55pm UTC](https://boards.straightdope.com/t/exclusionary-rule-question-debate/514733/11 "2009-10-22T14:55:13Z")
Am I missing something?
IANAL but seems to me evidence illegally obtained should not be available at all to prosecutors.
Imagine we have savvy Mob Boss-A. Police have never been able to obtain a warrant to find evidence against him. So, knowing **Villa** is his attorney the police kick down Villa’s door and ransack his place. The police cannot bust Villa because of FOTPT but now they can merrily bust Mob Boss-A?
Seems bogus to me.
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### Author:  [@villa](https://boards.straightdope.com/u/villa)
#### Post date: [October 22, 2009, 2:59pm UTC](https://boards.straightdope.com/t/exclusionary-rule-question-debate/514733/12 "2009-10-22T14:59:19Z")
> [@Whack-a-Mole](#):
>
> Imagine we have savvy Mob Boss-A. Police have never been able to obtain a warrant to find evidence against him. So, knowing **Villa** is his attorney the police kick down Villa’s door and ransack his place. The police cannot bust Villa because of FOTPT but now they can merrily bust Mob Boss-A?
Not the best example, because everything they take from my office is inadmissible anyway because it is privileged. 🙂
I agree with you generally - I don’t think allowing the admission of evidence gathered through constitutionally banned methods should be allowed, even if the party whose rights were violated isn’t the one being prosecuted. But, the law as stands doesn’t say that. I’m happy for a broader debate on the exclusionary rule, but I think we have done that before… 🙂
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### Author:  [@Rhythmdvl](https://boards.straightdope.com/u/Rhythmdvl)
#### Post date: [October 22, 2009, 3:24pm UTC](https://boards.straightdope.com/t/exclusionary-rule-question-debate/514733/13 "2009-10-22T15:24:42Z")
As with the OP, I am an ardent supporter of the Exclusionary Rule.
(warning; generalities ahead)
I don’t think it applies here, because a large part of it rests on the expectation of privacy. B can’t claim the privilege for items in A’s house because (among other reasons; again this is a generality) B has no privacy interest there.
Following the hypothetical, A can’t then claim privilege for items found in B’s house because A had no expectation of privacy there. B could have ratted him out at any time, not just because of the hypothetical scenario. The way for A to preserve his rights would to not have placed incriminating items in B’s possession.
I believe this issue came up in a fairly recent thread, but I can’t find it. I think it’s at C’s house.
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### Author:  [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)
#### Post date: [October 22, 2009, 3:31pm UTC](https://boards.straightdope.com/t/exclusionary-rule-question-debate/514733/14 "2009-10-22T15:31:35Z")
> [@villa](#):
>
> Not the best example, because everything they take from my office is inadmissible anyway because it is privileged. 🙂
Yeah…thought about that after I posted (was on a train headed into the subway so could not fix it).
Thinking about it though I wonder if it illustrates the issue here even better.
Say I (the police) know you are an attorney for Mob Boss-A. Mob Boss-A does business with Mob Bosses B, C and D.
So, I (the police) kick in your door and gather evidence. I cannot bust Mob Boss-A because the evidence you have is privileged. However, I can use that evidence to bust Mob Bosses B, C & D because, since they are a step removed, are not covered by the privilege.
Neat trick.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [October 22, 2009, 3:36pm UTC](https://boards.straightdope.com/t/exclusionary-rule-question-debate/514733/15 "2009-10-22T15:36:05Z")
> [@villa](#):
>
> What is it about adding Person B to the situation that changes things re the purpose and constitutional underpinnings of the exclusionary rule?
Well, the addition of person B makes all the difference in the world. The purpose of the exclusionary rule is to protect areas in which society feels that people have a reasonable expectation of privacy. The reason B cannot assert vicarious liability is that he has no expectation (that society is prepared to recognize) of privacy in A’s house. Evidence inculpating B, stored in A’s house, is not private, as far as B is concerned. B can’t complain his privacy was violated when the evidence is found.
If B isn’t in the picture, then A’s privacy interests are all that’s involved. If evidence in A’s house leads to a storage locker with more evidence against A, that evidence was found against A even though A sought to keep it private, and we’re prepared to recognize as reasonable A’s privacy interest in his home, and suppress all evidence against A arising from a violation of that privacy.
But when the search of A’s house inculpates B, the picture changes. Society is not prepared to recognize B’s privacy interests in A’s house.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [October 22, 2009, 3:37pm UTC](https://boards.straightdope.com/t/exclusionary-rule-question-debate/514733/16 "2009-10-22T15:37:29Z")
> [@Whack-a-Mole](#):
>
> So, I (the police) kick in your door and gather evidence. I cannot bust Mob Boss-A because the evidence you have is privileged. However, I can use that evidence to bust Mob Bosses B, C & D because, since they are a step removed, are not covered by the privilege.
>
> Neat trick.
Maybe. To the extent Mob Bosses B, C, and D are prospective co-defendants, privilege may apply to them as well.
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### Author:  [@villa](https://boards.straightdope.com/u/villa)
#### Post date: [October 22, 2009, 3:40pm UTC](https://boards.straightdope.com/t/exclusionary-rule-question-debate/514733/17 "2009-10-22T15:40:11Z")
> [@Rhythmdvl](#):
>
> As with the OP, I am an ardent supporter of the Exclusionary Rule.
>
> (warning; generalities ahead)
>
> I don’t think it applies here, because a large part of it rests on the expectation of privacy. B can’t claim the privilege for items in A’s house because (among other reasons; again this is a generality) B has no privacy interest there.
>
> Following the hypothetical, A can’t then claim privilege for items found in B’s house because A had no expectation of privacy there. B could have ratted him out at any time, not just because of the hypothetical scenario. The way for A to preserve his rights would to not have placed incriminating items in B’s possession.
>
> I believe this issue came up in a fairly recent thread, but I can’t find it. I think it’s at C’s house.
Privacy rights are a good way to look at it. I am not sure it gets us the whole way there, though. The underlying purpose of the exclusionary rule is that the state should not incentivize unconstitutional activity on the part of its agents. That problem still exists here.
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### Author:  [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)
#### Post date: [October 22, 2009, 3:53pm UTC](https://boards.straightdope.com/t/exclusionary-rule-question-debate/514733/18 "2009-10-22T15:53:03Z")
> [@Bricker](#):
>
> Maybe. To the extent Mob Bosses B, C, and D are prospective co-defendants, privilege may apply to them as well.
So…attorney/client privilege is a greater protection than the constitution?
Seems messed up to me.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [October 22, 2009, 4:12pm UTC](https://boards.straightdope.com/t/exclusionary-rule-question-debate/514733/19 "2009-10-22T16:12:53Z")
> [@Whack-a-Mole](#):
>
> So…attorney/client privilege is a greater protection than the constitution?
>
> Seems messed up to me.
To the contrary. The Constitution should be the floor for protections, the baseline. Legislatures may always add additional protection as they see fit.
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### Author:  [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)
#### Post date: [October 22, 2009, 4:14pm UTC](https://boards.straightdope.com/t/exclusionary-rule-question-debate/514733/20 "2009-10-22T16:14:29Z")
> [@Whack-a-Mole](#):
>
> So…attorney/client privilege is a greater protection than the constitution?
>
> Seems messed up to me.
I guess I should clarify that I know there is no reason a law (and not a constitutional protection) can’t provide even greater protection than that afforded by the constitution. The Constitution is more a floor for our rights than a ceiling.
That said it seems our resident attorneys are saying that the law will not permit evidence by illegally searching you to be used against you but any other evidence obtained by illegally searching anyone else is a-ok.
That seems messed up to me.
ETA: Bah…Bricker beat me. 🙂
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