# Is an unlawful way of restoring lawful order acceptable? **URL:** \ **Category:** Factual Questions\ **Created:** [November 20, 2014, 10:36pm UTC](https://boards.straightdope.com/t/is-an-unlawful-way-of-restoring-lawful-order-acceptable/705207 "2014-11-20T22:36:17Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Knowledgable](https://avatars.discourse-cdn.com/v4/letter/k/67e7ee/32.png) [@Knowledgable](https://boards.straightdope.com/u/Knowledgable)\ **Post date:** [November 20, 2014, 10:36pm UTC](https://boards.straightdope.com/t/is-an-unlawful-way-of-restoring-lawful-order-acceptable/705207/1 "2014-11-20T22:36:17Z")
To be more precise, an example: If a police suspects someone of exercising illegal activities in his own house’s basement and he goes into there without a warrant completely ignoring his constitutional rights, to expose an underground drug lab. Now, I haven’t studied law in any part of my life but here is one thing I am sure: the offender will go to jail definitely. The thing I am wondering is: Can the offender(s) sue the officer who undertook this act, which undermines the rights of a citizen for violating the constitution and actually win the case? and finally, what should be done about these wild officers who prefer to do their jobs “in their own ways”? ---
**Author:** ![clairobscur](https://avatars.discourse-cdn.com/v4/letter/c/839c29/32.png) [@clairobscur](https://boards.straightdope.com/u/clairobscur)\ **Post date:** [November 20, 2014, 10:43pm UTC](https://boards.straightdope.com/t/is-an-unlawful-way-of-restoring-lawful-order-acceptable/705207/2 "2014-11-20T22:43:06Z")
> [@Knowledgable](#): > > To be more precise, an example: > > If a police suspects someone of exercising illegal activities in his own house’s basement and he goes into there without a warrant completely ignoring his constitutional rights, to expose an underground drug lab. > > Now, I haven’t studied law in any part of my life but here is one thing I am sure: the offender will go to jail definitely. How so? The police officer can’t act on this knowledge alone, so he will need an actual warrant to search again the basement, officially this time. I guess police could then make up a story to get the warrant, but then why not make it up the first time around? Or you think he will say “I heard someone screaming “help”, so I had to enter”? ---
**Author:** ![clairobscur](https://avatars.discourse-cdn.com/v4/letter/c/839c29/32.png) [@clairobscur](https://boards.straightdope.com/u/clairobscur)\ **Post date:** [November 20, 2014, 10:45pm UTC](https://boards.straightdope.com/t/is-an-unlawful-way-of-restoring-lawful-order-acceptable/705207/3 "2014-11-20T22:45:15Z")
> [@Knowledgable](#): > > and finally, what should be done about these wild officers who prefer to do their jobs “in their own ways”? Except in extreme circumstances (but then I guess there would be martial law in place or something), they should be sacked first thing in the morning, unles you want police to routinely decide to search random houses. ---
**Author:** ![TriPolar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tripolar/32/3008_2.png) [@TriPolar](https://boards.straightdope.com/u/TriPolar)\ **Post date:** [November 20, 2014, 11:02pm UTC](https://boards.straightdope.com/t/is-an-unlawful-way-of-restoring-lawful-order-acceptable/705207/4 "2014-11-20T23:02:44Z")
> [@Knowledgable](#): > > If a police suspects someone of exercising illegal activities in his own house’s basement and he goes into there without a warrant completely ignoring his constitutional rights, to expose an underground drug lab. > > Now, I haven’t studied law in any part of my life but here is one thing I am sure: the offender will go to jail definitely. So which TV show did you get this idea from? ---
**Author:** ![glee](https://avatars.discourse-cdn.com/v4/letter/g/b5a626/32.png) [@glee](https://boards.straightdope.com/u/glee)\ **Post date:** [November 20, 2014, 11:15pm UTC](https://boards.straightdope.com/t/is-an-unlawful-way-of-restoring-lawful-order-acceptable/705207/5 "2014-11-20T23:15:03Z")
> [@Knowledgable](#): > > To be more precise, an example: > > If a police suspects someone of exercising illegal activities in his own house’s basement and he goes into there without a warrant completely ignoring his constitutional rights, to expose an underground drug lab. > > Now, I haven’t studied law in any part of my life but here is one thing I am sure: the offender will go to jail definitely. I assume you mean a policeman (call him Lestrade) thinks a suspect (call him Moriarty) is running an illegal drug lab in his (Moriarty’s) basement. And that Lestrade simply enters Moriarty’s house without a warrant and seizes the drug equipment, intending to prosecute Moriarty. Correct? OK, **I am not a lawyer** , but I’ve watched all 20 years of ‘Law and Order’. Moriarty will **not** go to jail - and all the evidence gathered illegally would be thrown out by a US court. (Lestrade has broken the 4th Amendment to the US Constitution.) Also any further evidence gathered because of the drug equipment found could also never be used in prosecuting Moriarty (this is called ‘fruit of the poisonous tree’.) > [@Knowledgable](#): > > The thing I am wondering is: Can the offender(s) sue the officer who undertook this act, which undermines the rights of a citizen for violating the constitution and actually win the case? I am not a lawyer, but both Lestrade and the police department he works for could face legal action. it depends on whether Moriarty can satisfy a court he’s been harmed. Certainly Lestrade would face suspension or even be fired. > [@Knowledgable](#): > > and finally, what should be done about these wild officers who prefer to do their jobs “in their own ways”? Suspension or even be fired. ---
**Author:** ![Ranger\_Jeff](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ranger_jeff/32/2065_2.png) [@Ranger\_Jeff](https://boards.straightdope.com/u/Ranger_Jeff)\ **Post date:** [November 20, 2014, 11:23pm UTC](https://boards.straightdope.com/t/is-an-unlawful-way-of-restoring-lawful-order-acceptable/705207/6 "2014-11-20T23:23:47Z")
Fruit of the poison tree. ---
**Author:** ![Alley\_Dweller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alley_dweller/32/430_2.png) [@Alley\_Dweller](https://boards.straightdope.com/u/Alley_Dweller)\ **Post date:** [November 20, 2014, 11:28pm UTC](https://boards.straightdope.com/t/is-an-unlawful-way-of-restoring-lawful-order-acceptable/705207/7 "2014-11-20T23:28:19Z")
> [@glee](#): > > OK, **I am not a lawyer** , but I’ve watched all 20 years of ‘Law and Order’. > Moriarty will **not** go to jail - and all the evidence gathered illegally would be thrown out by a US court. (Lestrade has broken the 4th Amendment to the US Constitution.) > Also any further evidence gathered because of the drug equipment found could also never be used in prosecuting Moriarty (this is called ‘fruit of the poisonous tree’.) If you really watched Law and Order for 20 years you would know that Lestrade and his partner would knock on the door and ask if they could come in. When Moriarity says no, Lestrade will turn to his partner and say “Do you smell that? I smell smoke” or “Do you hear that? Somebody is calling for help from the basement.” Then they will rush in and while investigating the possible fire or calls for help, they will “stumble” upon the meth lab in the basement. ---
**Author:** ![Smapti](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/smapti/32/17938_2.png) [@Smapti](https://boards.straightdope.com/u/Smapti)\ **Post date:** [November 20, 2014, 11:38pm UTC](https://boards.straightdope.com/t/is-an-unlawful-way-of-restoring-lawful-order-acceptable/705207/8 "2014-11-20T23:38:02Z")
The offender would almost certainly _not_ go to jail in this situation - the evidence against him was collected in an unlawful fashion, and therefore cannot be used in court. By way of tying this to a real-world case; a few years ago in my town, the director of a local theatre group failed to show up for work one day and his cell phone went dead. He was not seen or heard from for a week. He turned up at 1:30 in the morning the week after his appearance, calling 911 from a payphone to ask for a ride home, and the circumstances of why he disappeared and what happened while he was incommunicado have never been made public. In the meantime, however, there was a police search for him, and in an attempt to find out who he may have been communicating with in the days prior to his disappearance, the cops seized and searched his computer. While doing so, they allegedly turned up some child porn. After he reappeared, an attempt was made to prosecute him for possession of the images; however, the judge would ultimately rule that since the police didn’t have a warrant to search his computer while he was missing, they came across the images unlawfully and as such they could not be introduced as evidence against him. The charges were ultimately dropped, he resigned from the theater company, and has since left the public eye as far as I know. (The company ended up folding a year later due to federal tax issues that had existed since before his tenure, which is a shame because they did good work, but I digress. Google “Capital Playhouse Troy Fisher” if you want to read the newspaper articles about the case.) Was justice served? I don’t know, but the point is that the police are just as subject to the rule of law as everyone else. The search was conducted in good faith, but because they didn’t go through the formal process of acquiring a warrant, the incidental information that turned up during the search was fruit of a poisoned tree. ---
**Author:** ![Knowledgable](https://avatars.discourse-cdn.com/v4/letter/k/67e7ee/32.png) [@Knowledgable](https://boards.straightdope.com/u/Knowledgable)\ **Post date:** [November 21, 2014, 12:28pm UTC](https://boards.straightdope.com/t/is-an-unlawful-way-of-restoring-lawful-order-acceptable/705207/9 "2014-11-21T12:28:52Z")
Turns out I have no idea! Thanks anyways. ---
**Author:** ![DrFidelius](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/drfidelius/32/3447_2.png) [@DrFidelius](https://boards.straightdope.com/u/DrFidelius)\ **Post date:** [November 21, 2014, 12:35pm UTC](https://boards.straightdope.com/t/is-an-unlawful-way-of-restoring-lawful-order-acceptable/705207/10 "2014-11-21T12:35:44Z")
A police officer violating a citizen’s Constitutional rights is a much more serious offense than running a meth lab. ---
**Author:** ![Donnerwetter](https://avatars.discourse-cdn.com/v4/letter/d/b2d939/32.png) [@Donnerwetter](https://boards.straightdope.com/u/Donnerwetter)\ **Post date:** [November 21, 2014, 12:50pm UTC](https://boards.straightdope.com/t/is-an-unlawful-way-of-restoring-lawful-order-acceptable/705207/11 "2014-11-21T12:50:42Z")
> [@](#): > > Former Radford University professor to serve 15 years in prison for child porn convictions > [@](#): > > Almost a year ago, a neighbor called 911 after seeing the front door of Mahon-Haft’s Radford home, wide open. > > Radford prosecutor Chris Rehak said in court that police entered the home looking for a burglar. Instead they found illegal drugs and eventually thousands of images of child pornography on Mahon-Haft’s personal computers and thumb drives. [http://www.wdbj7.com/news/local/former-radford-university-professor-to-serve-15-years-in-prison-for-child-porn-convictions/23565968](http://www.wdbj7.com/news/local/former-radford-university-professor-to-serve-15-years-in-prison-for-child-porn-convictions/23565968) ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [November 21, 2014, 1:02pm UTC](https://boards.straightdope.com/t/is-an-unlawful-way-of-restoring-lawful-order-acceptable/705207/12 "2014-11-21T13:02:34Z")
> [@Alley\_Dweller](#): > > If you really watched Law and Order for 20 years you would know that Lestrade and his partner would knock on the door and ask if they could come in. When Moriarity says no, Lestrade will turn to his partner and say “Do you smell that? I smell smoke” or “Do you hear that? Somebody is calling for help from the basement.” Then they will rush in and while investigating the possible fire or calls for help, they will “stumble” upon the meth lab in the basement. Yes that is how it happens on TV. In real life I know no judges that would let that fly. If there were genuine exigent circumstances and illegal activity is discovered that is not the end of it. If there was a fire and a meth lab was discovered… no lets not use that one. Way too complicated. That turns into a Hazmat scene with tons of others trampling the scene before the police can do their job. So let’s say someone is being assaulted and calling for help. The officer enters the structure and rescues the damsel then discovers a meth lab. Everything stops at that point. The scene is secured with no further searching. Then a warrant has to be obtained. Just because something is discovered due to a valid 4th amendment exemption doesn’t mean you can now search the entire house. And a warrant is much more complicated than what you see on TV. ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [November 21, 2014, 1:06pm UTC](https://boards.straightdope.com/t/is-an-unlawful-way-of-restoring-lawful-order-acceptable/705207/13 "2014-11-21T13:06:59Z")
> [@Donnerwetter](#): > > [http://www.wdbj7.com/news/local/former-radford-university-professor-to-serve-15-years-in-prison-for-child-porn-convictions/23565968](http://www.wdbj7.com/news/local/former-radford-university-professor-to-serve-15-years-in-prison-for-child-porn-convictions/23565968) Perfectly valid. I suspect the “eventually” covers when they got a warrant to search the residence after finding the drugs. And since that would not normally give you the contents of the computer I am guessing there were multiple other steps not mentioned. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [November 21, 2014, 2:32pm UTC](https://boards.straightdope.com/t/is-an-unlawful-way-of-restoring-lawful-order-acceptable/705207/14 "2014-11-21T14:32:06Z")
Yes - it’s one thing to say “I smell smoke” or I"I heard a scream", it’s another to prove to the court there actually was such a valid excuse. The perp’s lawyer will challenge - what was the scream line, where did it come from, even if there was a scream somewhere, it obviously did not come from inside the house and the police must have known if they had decent hearing, it sounds like a trumped-up excuse and therefore a violation of his 4th amendment rights. There is no “magic words” or whatever the expression is. You don’t suddenly make a search OK by saying you heard something or smelled something. The search rests on the legitimacy of the excuse for not getting a warrant, and the defense lawyer will tear apart every piece of it. If Lestradt had credible evidence, he should have gone to a judge. “Hot pursuit” or whatever the legal term, only applies in rare cases. As mentioned above, to allow such “excuses” would simply hand the police open season on anyone they cared to home-invade. ---
**Author:** ![Darth\_Panda](https://avatars.discourse-cdn.com/v4/letter/d/ee7513/32.png) [@Darth\_Panda](https://boards.straightdope.com/u/Darth_Panda)\ **Post date:** [November 21, 2014, 2:39pm UTC](https://boards.straightdope.com/t/is-an-unlawful-way-of-restoring-lawful-order-acceptable/705207/15 "2014-11-21T14:39:24Z")
You need to purge the taint. ---
**Author:** ![SDarbo](https://avatars.discourse-cdn.com/v4/letter/s/439d5e/32.png) [@SDarbo](https://boards.straightdope.com/u/SDarbo)\ **Post date:** [November 21, 2014, 3:03pm UTC](https://boards.straightdope.com/t/is-an-unlawful-way-of-restoring-lawful-order-acceptable/705207/16 "2014-11-21T15:03:17Z")
Issues in this thread: [exclusionary rule](https://en.wikipedia.org/wiki/Exclusionary_rule), Side issues probable cause, exigent circumstances, and [inevitable discovery](https://en.wikipedia.org/wiki/Inevitable_discovery). I know Scalia has said in at least one interview that he’d like to move away from the exclusionary rule and into civil remedies. The exclusionary rule has been chipped away through very many decisions limiting its application. What the officer says about how he came to break into the defendants basement is going to have a lot of bearing on what is admissible. The officers credibility is going to be attacked by defense attorney. I don’t think there is a guaranteed outcome in court. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [November 21, 2014, 3:13pm UTC](https://boards.straightdope.com/t/is-an-unlawful-way-of-restoring-lawful-order-acceptable/705207/17 "2014-11-21T15:13:15Z")
No need to resort to interviews. He’s said it in several actual opinions. To Scalia, civil remedies _already_ justify doing away with the exclusionary rule. See _Hudson v. Michigan_, 547 U.S. 586 (2006) for example. ---
**Author:** ![Knowledgable](https://avatars.discourse-cdn.com/v4/letter/k/67e7ee/32.png) [@Knowledgable](https://boards.straightdope.com/u/Knowledgable)\ **Post date:** [November 21, 2014, 10:30pm UTC](https://boards.straightdope.com/t/is-an-unlawful-way-of-restoring-lawful-order-acceptable/705207/18 "2014-11-21T22:30:11Z")
So, in theory even though these “illegally obtained evidences” will be held inadmissible in court; from the Hudson v. Michigan case and the Prof. Child Porn case, what I see is that such evidence would likely be held admissible for the greater benefit of the community. ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [November 21, 2014, 11:13pm UTC](https://boards.straightdope.com/t/is-an-unlawful-way-of-restoring-lawful-order-acceptable/705207/19 "2014-11-21T23:13:28Z")
> [@Knowledgable](#): > > So, in theory even though these “illegally obtained evidences” will be held inadmissible in court; from the Hudson v. Michigan case and the Prof. Child Porn case, what I see is that such evidence would likely be held admissible for the greater benefit of the community. I think you should replace “likely” with “possibly.” And for the judges in my county replace “possibly” with “no way in hell.” ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [November 23, 2014, 12:37am UTC](https://boards.straightdope.com/t/is-an-unlawful-way-of-restoring-lawful-order-acceptable/705207/20 "2014-11-23T00:37:21Z")
> [@Knowledgable](#): > > So, in theory even though these “illegally obtained evidences” will be held inadmissible in court; from the Hudson v. Michigan case and the Prof. Child Porn case, what I see is that such evidence would likely be held admissible for the greater benefit of the community. For now, only under very specific circumstances - specifically, those where discouraging illegal police activity are not at issue. [Next page](https://boards.straightdope.com/t/is-an-unlawful-way-of-restoring-lawful-order-acceptable/705207.md?page=2)