As a foreigner, I always have a problem with the idea that evidence is inadmissible because of the way it was found.
Suppose I am a burglar who broke into your house to steal the steaks from your freezer and found a body instead of the meat. Then suppose that I was so horrified that I phoned the police and told them.
Does this mean that my discovery (the deceased) would not be admissible?
In Illinois (at least) Citizen Arrest is a thing. How is what you can do off-duty different than what I can do (I am not a LEO)? (for the sake of argument let’s say you are a LEO in Illinois)
From the link above:
A private citizen may make an arrest under certain circumstances. The law permits a citizen to detain or place under arrest another person when that citizen has probable cause to believe that a criminal offense other than an ordinance violation is being committed. The law does not permit, however, a citizen to detain or arrest another person based on the mere suspicion that a crime is being committed; the citizen must have personal, firsthand knowledge of the commission of the offense. All the person making the arrest has to do is prevent the accused from leaving the area. For example, a person executing a citizen’s arrest may take the accused by the arm and say something like, “Stop. I’m holding you for the police.”
Agian - it’s when the state and its agents violate the rules about entry and warrantless searching that the evidence is inadmissible. Private citizens snitching on each other simply gives the state grounds to get a warrant -which they would have to do to search.
The whole point is - if the police can do whatever they want, and that evidence is admissible - whether it’s just walking into your home on a humch with no warrant, or interrogating you without your lawyer, or beating a confession out of you - then justice ceases to be justice. (“But the police could be charged for breaking and entering!” That’s a prosecutor’s decision, and if they decide they don’t want to prosecute the police who find evidence for them… then the police will keep doing it.)
IIRC Canada’s law gives more wiggle room -evidence is inadmissible if it “tends to bring the administration of justice into ill repute”. i.e. (I’m sure a for-real lawyer will clarify) it becomes a trade-off between how serious the evidence is and how serious the breach of law was to get it.The USA leaves a lot less wiggle room.
The case in Canada (Saskatchewan?) was a doctor who drugged his step-daughter; eventually a DNA test was necessary. He actually inserted a tube under his forearm with another man’s blood, and so the DNA did not match. But due to assorted legal proceedings, they wanted to test two more times, and he realized the DNA had to match each time. But the sample was getting old after several months, and the blood apparently “didn’t look right” and he couldn’t get a fresh sample from that patient. I saw a video clip on TV where they took the last sample. He said “here, let me, I’m a doctor” and took the needle and took the sample himself. In the grainy video you can see an odd bulge where the tube was. Eventually, they had the police later take a cheek swab and got a match.
The people have an interest in application of the law that does not allow LEOs to take off their badge and claim they are off-duty private citizens as a convenient means of bypassing on-duty limitations. I believe the idea that LEOs are always on-duty is the best solution, when it can be practically applied. At the same time enforcement of the law shouldn’t be hamstrung by such restrictions that would prevent an LEO from acting in the same manner as a private citizen when expediency is required.
Well trained LEOs will mitigate the extent of this problem. Everybody has cell phones now and any off-duty officer unsure of their status or allowable conduct can easily call in the situation. Even if they can only leave a message or send a text they are establishing a record of events that will not leave the matter entirely to their recollection of events.
It’s not uncommon to see the word “illegal” to describe a bad search and/or seizure. That’s not very accurate. It implies some law has been broken. Most often it’s some caselaw that has been followed incorrectly. It’s more accurate to say improper search and seizure because very rarely does it involve a criminal act.
And as others point out the 4th amendment is to protect citizens from overreach of the government. It has nothing to do with the actions of private citizens towards each other. It’s a common misconception by US citizens about the constitution (see: 1st amendment).
I suppose another issue in the OP’s case is - was the person acting on information they received because they were a LEO? If someone sees in the gang squad files that “this is a known drug house” so takes of their badge and then does a search of the house - how is that “a private citizen”? they are acting on private police information that the average citizen is likely not privy to.
In this case, no. Although the acting on behalf of the police is murky, since the group that got the video showing who the perp was, was acting on behalf of the private investigator, who had a personal relationship with the LEO (is that the right acronym?)
In Illinois, is it legal to record other people if they are not aware they’re being recorded?
There are proceedures that have to be followed by an on duty officer. There are also certain legal protections that a LEO has that a private citizen may not. YMMV.
The main issue is liability for the department. If an off duty officer is running around making arrests under the authority of his position it can cause problems for the agency. This is why many departments limit when you can act as an officer while off duty. If I were to act during a situation that our SOP says I’m not allowed to act on then I am doing it as strictly a private citizen. Wisconsin, BTW, does not have an actual citizens arrest statute,
Now, during my first career as a Deputy Sheriff it was the opposite. Unless we were consuming alcohol we were required to have our badge/ID, a loaded firearm W/spare magazine, and a pair of cuffs on our person at all times while within the county. And we were expected to take action if we came across any violation of law that we would enforce while on duty. But Sheriff is a Constitutional Office. He can’t get fired by a city/village/town common council like a police chief can when lawsuites start rolling in.
When David Clarke was Sheriff in Milwaukee County he had a zillion lawsuites against him, a few for actions Deputies took while off duty. Clarke just laughed them off. He didn’t have to pay anything to fight them.
Illinois is a two-party consent state.
I found this via Google:
Question: “If a person broke into a home and found evidence of a different crime and reported it to the cops, would they be able to use the evidence?”
Answer: "Yes.
"When the police make an illegal search, then the evidence they find is inadmissible.
"If the police ask a person who is not a cop to do an illegal search, the evidence is inadmissible. That person becomes defined as an “agent” for the police, doing the search on their behalf.
"When anyone else conducts an illegal search, without any police involvement until after the fact, the evidence is generally admissible.
“However, evidence is also, generally, only admissible if a lawyer in the case can put a witness on the stand to testify about being the person who collected that evidence and about how that evidence was discovered, preserved, sealed, and stored, etc. This is called “laying a foundation” for the evidence. This means that the burglar is going to have to admit to burglary (or computer hacking, theft trespassing, etc.) in open court while laying the foundation for that evidence.”
However, as Little_Nemo pointed out, this individual is a police officer and, even though he is off duty, other factors may come into play for that reason.
I suppose you could argue if the information came via the police system, then an officer who got the information that way and then “took off his badge” is actually working at the behest of a police officer - himself.
I take your point that the OP’s example had nothing to do with police information so could be considered purely the actions of a private citizen. I assume in that case, if someone says “what are you doing here!?” it would be a bad idea to say “I’m a police officer.”
Generally speaking, that evidence would be admissible. The burglar is not a government agent and he wasn’t working for a government agent.
I stand by what I wrote earlier. There are some limitations on the idea of police officers always being on duty, like Bracken v. Okura (which I think might be the case Max_S was referring to) but they generally address the issue of qualified immunity rather than evidence admissibility.
The OP lacks enough detail to work this out. The police officer is looking for a missing girlfriend, who was possibly kidnapped. Then the possible circumstances begin to branch. This should have become a police matter, especially if there was reasonable evidence she was kidnapped. If the matter had not been reported to the police and should have been there’s a path where he’s derelict in his duty and/or a suspect. If it is a police matter already being outside the jurisdiction creates more branching. If it’s a possible kidnapping it is a state crime at a minimum, and state laws I’m sure will vary on the responsibilities of LEOs at any level of jurisdiction within the state in regard to this. If the FBI was involved or his actions occurred in a different state than the one where he was an authorized LEO things further complicate. Somewhere in that tangled web the basis for his belief that his girlfriend would be found in that house will matter a lot if he used police resources or his position as a police officer to obtain this info.
Despite all that, I think finding a dead body not at all related to his actions would likely be admitted into evidence at an initial murder trial. Maybe it would be a matter for appeal following a conviction. It depends on how much a conviction of the murderer was based on finding that body in the freezer. The courts could for a reason possible in some scenarios consider the discovery ‘fruit of the poisoned tree’ and disallow it altogether. I’m not sure how that works out if the only knowledge of the dead person’s death came to light from this case.
I would bet my pension that the individual would be seen as acting as a police officer in my state. Not because there is a specific law stating that but I have seen how 4th amendment questions are usually ruled upon. Now I can’t predict if the evidence would be excluded because the prosecution would try to find a way to get it in anyway.
Were I the defense attorney, I would concentrate on this from the OP: " Cop is looking for his missing almost certainly kidnapped girlfriend. He enters the house where he thinks she might be, and finds the frozen body of the house owner’s dead wife." My stance would be the officer, because of his strong personal feelings, was abusing his police powers by illegally entering my client’s residence. His actions amounted to obtaining that evidence through the abuse of his police powers and therefore should be stricken.
I think the conflict of interest is far too great to ignore.
He could have known his discovery of the dead body would cause a problem and then just notified the police about it anonymously. So the scenario has to account for why he would have notified the police after committing a crime himself. Not to mention why he didn’t notify the police about the information which led him to be there instead of acting on it himself.
This right here. It was shoddy writing, the police should have been notified as soon as they knew the GF was kidnapped, and the police should have handled the whole thing.
I’m enjoying the series as a whole, but there are definitely flaws. This was just the biggest one. Thanks to the people who have responded, this way I won’t be annoyed by it at random times.
Also, I’m really enjoying the conversation.
One possible problem is that anonymous tips, absent some indicia of trustworthiness, don’t necessarily rise to the level of probable cause needed to justify a 4th amendment search.
Good point. He could drag a body out of the freezer to someplace where it could be seen through a window. Then he could call it in anonymously saying he was delivering a package when he saw the body. They might come out to check on that one.