Usually if the police can demonstrate to a judge that they followed legal methods and could obtain the tainted evidence that way, then the evidence is admissible. The fact that the tainted version set them onto the correct path of seeking is irrelevant, legally. IIRC.
Well, if you tell your attorney that you did it, it would then be unethical for them to argue in court that you didn’t do it. So you probably shouldn’t do that if you’re trying to get off entirely. If you’re resigned to being convicted and are just trying to get a relatively light sentence, that’s different.
I think that he wanted to lose. He couldn’t complain about winning, after all, and complaining is his life’s work. He needed to have something to complain about.
The main thing is that he can’t show it to anyone else, most importantly to the jury.
Based on my extensive legal training (watching Law and Order) they would need to demonstrate to a judge that there is a plausible investigative path that would have led them to the evidence absent the illegal search.
But I’d be interested to hear an expert legal explanation of this. Presumably it cannot be sufficient for the police to say, even if it is true: “We didn’t actually get a warrant, but we had sufficient grounds to obtain one if we had asked, so the evidence should be admissible.” Because then, why would they ever bother getting a warrant ahead of time?
Your lawyer can conduct a vigorous defense by pointing out holes in the prosecutions case without ever needing to say that their client didn’t do it.
Sure, but the prosecution can call you to the stand and ask you if you did it. If you lie, your lawyer is ethically obligated to inform the court that you have lied. You can take the Fifth, which would be your best option, but still isn’t going to make a good impression on the jury.
But IANAL so I could be missing something important here.
No, they can’t. Defendants don’t have to testify if they don’t want to.
Here’s the thing: for a search, the police have to either have a warrant, or they have to have one of the legal bases for conducting a warrantless search, like exigent circumstances or consent. To get a warrant, you need probable cause, and you also need probable cause in addition to exigent circumstances or whatever you have in place of the warrant. But if you just have probable cause, and no warrant or circumstances supporting a warrantless search, you can’t legally search, and you can’t get the stuff you found in later based on an argument that you could’ve gotten a warrant.
Not exactly. Defendants* don’t have to answer questions that might incriminate them. Note that the answer doesn’t have to implicate them in the particular crime for which they’re being charged; it could be any criminal act. Because it’s difficult to know whether the answer to a particular question would be incriminating without hearing it, judges give a lot of leeway when defendants plead the fifth, and prosecutors generally don’t bother calling a defendant to the stand if his lawyer says he’s not going to testify, because it’ll just waste time. But prosecutors can call defendants to the stand, and defendants technically have to answer any questions if the answers would not incriminate them.
*This applies to any witness, not just defendants. If I’m called as a witness in a murder trial because I happened to be walking through the park when it happened, I can plead the fifth if asked why I was in the park, if the answer is “I was meeting my coke dealer.” I just used the language from the previous scenario.
I don’t believe this is true in any US jurisdiction.
This little legal encyclopedia article/blog/whatever seems to cover this nicely.
It’s not unusual to tell a defense attorney that you’re guilty. Defense attorneys defend guilty people all of the time. It’s part of the job. They are obligated to present the best defense they can for you, and force the prosecution to present a good enough case to prove your guilt. Since knowing the facts of the case helps a defense attorney craft a better defense, and whether or not you did it is a pretty important fact, it happens all the time.
If you are guilty of the crime, a competent defense attorney will insist you not testify, because if you do and the prosecution inevitably asks if you did it, you have to either confess or commit perjury. So they’ll tell you not to do it. If you insist on testifying anyway, the defense attorney will most likely withdraw from the case so that they aren’t stuck in the position where they have to either fail to report your perjury, or fail in their duty to defend you. You’re putting them in an impossible position if they stay on your case.
I expect that the attorney would also warn you of that as well, and use that as a way to convince you not to testify.
The 5th Amendment precludes this. If they could do that, it would be unconstitutional. So you’re correct, they can’t.
Because the Fifth Amendment to the U.S. Constitution protects against self-incrimination, the prosecution cannot require the defendant to take the stand and explain what happened, nor can it comment or speculate on the reasons the defendant has chosen not to testify.
Right, as I had assumed. That would make a travesty of the whole concept of requiring a warrant.
But then what exactly are the allowable grounds to get evidence admitted if a search is deemed illegal? I know I’ve seen this plot point numerous times on procedural shows - don’t they call it inevitable discovery?
ETA: Reading about inevitable discovery, I guess the answer is that it would have to be an argument that the evidence would have come to light by some process other than the search that required the warrant that they failed to obtain.
Read your own quote. They can’t require defendants to take the stand and explain what happened, nor comment or speculate on why they didn’t testify. In the real world, this plays out as defendants just not being called to testify unless their own lawyer calls them first, because what are you gonna do, call them up to the stand and ask them how they’re doing? Inquire as to their weekend plans? You can only ask relevant questions, and it’s hard to think of a relevant question you could ask a defendant that won’t incriminate him. But if you can think of it, you can ask it.
…I did? They can’t call up a defendant to testify, period.
That is completely different. That is the defense calling the defendant to the stand. They can do that. Nobody has suggested they can’t. Of course they can, that’s what we’re talking about, what would happen if the defense calls the defendant to the stand when the defendant is guilty and the defense attorney knows it. That’s literally what we’re talking about it.
Yes, of course the prosecution can cross-examine the defendant. That’s why the defense won’t call the defendant to testify in the first place. But the prosecution can’t call a defendant to the stand. What you posted was wrong.
Again, not a lawyer, but this is pretty simple stuff that’s easy for anyone to look up, so I don’t think I need to be a lawyer to be confident about basic facts.
ETA: I’m confused how this relates to this case though, I think I lost track of that. 
I don’t mean that statement just for you, I’m asking participants here in general.
Right, but inevitable discovery doesn’t mean “we inevitably would have gotten a warrant for that search.” It means “we would have found that evidence without conducting that search.” For example, let’s say the police enter my home without a warrant, look through my cell phone, and find incriminating texts between me and my co-conspirator in the next county. They do this because they’re arrogant bastards, not because they have any excuse for not seeking a warrant. Those text messages should be excluded. But, what if the police in the next county play it by the book and get a warrant for my co-conspirator’s text messages, and then send those records to the police in my county? Now the texts are back in.
No, the prosecution can’t call a defendant to the stand. They can only cross examine if the defendant takes the stand in their own defense.
No, the “you” in “what are you gonna do, call them up to the stand and ask them how they’re doing?” was meant to refer to the prosecutor. The prosecutor would have a hard time coming up with questions the defendant would actually have to answer, so there’s not much point in the prosecutor trying.
I admit this is very nearly a distinction without a difference, because it is difficult to imagine what a prosecutor could ask a defendant that a defendant couldn’t refuse to answer. And if a prosecutor were to call a defendant to the stand, I imagine the defense attorney would leap to his feet and request a sidebar or conference in chambers, which I imagine the judge would grant. The defense attorney might argue to the judge that the prosecutor was trying to get around the prohibition on commenting to the jury about the defendant’s refusal to testify by putting him on display pleading the fifth, and that this was the only conceivable purpose of calling him to the stand, and it was therefore, at best, a waste of the court’s time. The judge would probably ask the prosecutor to respond to that. The prosecutor could then tell the judge what he was planning to ask the defendant. If he had come up with a question that somehow managed to be relevant to the proceedings without seemingly being able to incriminate the defendant, the judge would probably allow him to ask it.
A more plausible scenario might involve a question that would implicate the defendant in a crime, but he would be safe from prosecution as to that particular crime, whether because he’d already been acquitted and double jeopardy attached, because the statute of limitations had run out, or because the prosecution had granted him immunity. It would still be tricky, because the defendant just has to reasonably believe his answer would incriminate him in some other crime for which he could still be prosecuted; if you gave him blanket immunity, he wouldn’t be a defendant anymore. But you can see how this might open things up a crack.
An even more plausible scenario arises when we’re dealing with a civil trial. There’s no civil fifth amendment; you can’t refuse to answer questions on the ground that they might make you civilly liable. But the fifth amendment does still apply to civil proceedings; if you’re called to the stand in a civil case, and asked about things that might incriminate you, you can refuse to answer. But in a civil case, there’s more room for relevant, non-incriminating questions. And again, if it’s about something criminal you did but for which you can’t be prosecuted, you can’t plead the fifth.
But this example would depend only them having independent knowledge of the existence of this co-conspirator, correct? If the only way the police (anywhere) found out about the existence of this co-conspirator was through the illegal search of your phone, this other search would still be “fruit of the poisonous tree”.