So what, specifically, is the difference between a respected member of the police force performing an illegal search, and a criminal breaking and entering who also happens to be a cop?
A civilian burglar could break in, find the body, and call the cops, and no judge would have a problem with issuing a warrant and eventually using that evidence in court, right? But if he’s employed by the police force, it’s a problem? What if no one in his chain of command authorized that search? What if it wasn’t a search, but a burglary by a rogue cop, who decides to call in and help out his buddies while swiping jewelry?
Could the mafia hire a few corrupt cops, have them illegally search every mob hideout, and then get off scott free since all the evidence against them has now been tarnished?
The difference is whether the actor is under instructions from law enforcement. If it’s an actual cop, he is under instructions from law enforcement by definition, and if it’'s an informant or something, they can still only report crimes that they discover while in a place they have a legal right to be. A sanitation worker can report finding a body in your dumpster because the sanitation worker has a legal right (and duty) to take your trash. However, the cops can’t search your trash* absent a warrant, because an ordinary member of the public couldn’t either.
There is a doctrine called “independent discovery” which means illegally obtained evidence can still be used if some other police personnel find it legally (and without knowledge of its prior unlawful discovery), or if it can be proven that it would have been discovered legally based on the course of the investigation prior to the unlawful search. So if Joe finds the body but leaves it where it is, and Steve gets a warrant to search the house because of an unrelated code violation, and finds the body, it’s admissible. If Steve gets a warrant because Joe told him there was a body in there, not admissible. There is a heavy presumption against admission of such evidence (because the police have an incentive to lie about whether they shared such information, for one thing.)
*depending on where your trash is. If you leave it on the road or sidewalk for pickup it’s generally fair game.
The other element is that if Joe tells Steve the body is there, and then Steve goes and gets a warrant basd on the code violation (and never mentions the body to the magistrate), I think it’s still admissible (there’s a case on this; but I can’t recall what it is, where, as I understand it, the police conduct an illegal search and then obtain a warrant based on unconnected evidence and they can admit even the evidence from the first search; but I might be missing a factor).
I would think, under the hypothetical, what your officer needs to do is leave and come up with some unrrelated reason to obtain a warrant, and then “discover” the body.
In that scenario, the officers wouldn’t be able to search the fridge because it would presumably be outside the bounds of a warrant based on a code violation.
Yes, but Hudson merely relates to a deficiency in the manner of entry. It says nothing about a search in which no warrant exists and no exclusion applies.
I’m not sure that’s true per se. I vaguely recall reading a case in which the accused conspired with a cop ahead of time to “discover” the body with an illegal search, the pair reasoning that the worst that could happen is the cop gets fired for bungling the search, but the tainted search would insulate the killer from any other legal consequences.
Again going on vague recollection, the agreement (or at least the existing …ah…social relationship) between the cop and the accused was discovered, and the trial court ruled that the exclusionary rule did not bar admission of the evidence, since the man, even though an officer, was not acting for the benefit of law enforcement at the time.
So burglars can’t inform on the homeowners they steal from? Since they don’t have a legal right to be there? That doesn’t sound right to me. Criminals are quite often in places they’re not supposed to be, but that doesn’t stop the prosecutor from putting them on the witness stand.
Or does this not apply to actions undertaken without police request or supervision? Is there a difference between “tell us what you saw when you broke into that house last night” and “go break into that house and tell us what you see”?
And what stops criminal organizations from poisoning all the evidence against them, either through crooked cops or unlawful informants? Is it just a gamble many mobsters wouldn’t choose to make? Are crooked cops a lot rarer than television would imply?
I hear a lot about evidence being stolen, but never about it being preemptively “poisoned” by illegal searches. But it seems the latter would be an attractive option for organizations big enough to afford it, like the mafia.
Burglars can inform on homeowners regardless of whether they have a right to be someplace. Cops can’t; illegally entering your property is a Fourth Amendment violation even if they don’t find anything.
If you’re a mobster deliberately “tainting” your safe house you’d have to “re-taint” it every time you store evidence of a new crime there. In any case, cops are (theoretically) liable in tort under § 1983(ish) for Fourth Amendment violations. If you’re a mobster with crooked cops on your payroll it’s almost certainly more practical to just have them keep an eye out when investigations are actually opened, and mess those up.
Interesting.
Based on the OP’s description it doesn’t sound like he was there to steal, just that he wasn’t looking for bodies.
I wish I could remember the story better, but I can’t even remember what episode it was. I don’t remember what Dwight the detective was looking for, but the duct taped fridge was like a bright shiny object that distracted him from the search and that he couldn’t resist opening. Why the situation fascinates me so is that even watching it in real time I knew there was no PC to search the house, and then when he found the body I was like ‘well, good luck getting THAT admitted!’ But I wasn’t sure what the real world legalities would be, so here I am, as always, Just Asking Questions.
Maybe the situation is just so unusual that it would never happen, so there is no real world precedent.
Why would the body (generally) be admissible as evidence if the homeowner (renter, or whatever) wasn’t a suspect? Are you assuming that an innocent homeowner would authorize the search afterwards, or otherwise cooperate?
I’m not saying it’s wrong, I’m wondering about the logic behind that legal standard. I know the “fruit of the poisoned tree” principle is supposed to remove any reward for illegal searches.
Becuase, broadly speaking, you only have “standing” to assert your own rights. So, the homeowner might have some claim against the cop (trespass, for example) for the illegal search. But the suspect can’t claim that the officer violated the homeowner’s rights.
To clarify, you don’t necessarily have to own or rent the house to suppress evidence on a Fourth Amendment basis. An overnight guest (for example) has a heightened expectation of privacy in a private home, for example. Whether or not this heightened expectation extends to duct taped refrigerators is anyone’s guess.
Hudson is about knocking and waiting. Note the Scalia quote that says what’s in the warrant can be admitted - i.e. the police were pretty sure it wa there, so not waiting for an answer after knocking does not negate the effect of the search. (However, they then go on to allow a gun as evidence as well as the drugs - I assume then the gun was part of the warrant.
If the burglar is acting on instructions from the cops, then whether he’s a policeman or not, effectively this is the government sticking its nose into yor house - the point of Breyer’s quote there. That violates the 4th amendment. If some buglar decides he likes your flat-screen TV and in the course of that, finds a body - well, that’s no different than a nosy house-guest finding the body. They aren’t there at the instigation of the police, the urging of the police, or any similar reason. Therefore, the government is not fishing for evidence in your house without reasonable cause.
There was something similar, IIRC, in the novel and movie “Mystic River”. The cops moved (or claimed the car was moved) to an illegal parking location and towed it, then searched it. When they found evidence of a crime, the accused logically pointed out “It was stolen and moved? Maybe those guys who stole it planted evidence.”
Basically, when teh cops act outside the law, they are screwing up the system so badly that the system is lucky if it can make a case. After all, a cop who would commit break-and-enter, would he also happily plant evidence? Lie on the stand? Where does it stop?
MD, I cited Hudson because it was a recent ER case, not that it mirrored the OP’s facts, but as you see in my post 36, it cites ER cases that are of note.
