Ding Ding Ding! We have a winner!
This is exactly the difference.
Which probably answers your other questions. The mafia can’t suppress evidence by having someone illegally break into their safe house and report it, because the burglar isn’t acting for the cops. As mentioned, even if the burglar was a cop, since he’s not really working for the police at that point, no suppression
In practice, a cop could intentionally ruin a case they’re already working by doing an illegal search, but only because nobody could prove it was intentional. In theory, once it’s proven the cop wasn’t actually trying to do his job, then the evidence is admissible.
Just because a policeman is not doing his job properly does not negate the fact that he’s an agent of the government. An agent of the government searching without a warrant, whether deliberately trying to mess up the case or not, is still performing an illegal search; as is the case with anyone else sent in by the government agents.
If he’s just intentionall messing up the case because he’s pissed off at his boss or something, sure I agree, it’s still inadmissible. The thread earlier mentioned the mafia hiring a corrupt off-duty cop, and in that case I think it’s pretty clear the corrupt off-duty cop is not acting as an agent of the government.
The in-between areas are going to be harder calls, but I think that if the mafia bribed a cop doing an investigation to deliberately do an illegal search while on duty, and all the facts came to light, the evidence would probably be deemed admissible.
That’s a good question.
A cop can’t escape the inadmissibility rule by waiting until he’s finished his shift; just as he can’t escape it by asking someone else to do the dirty work at his instigation. Essentially, the mafia are hiring him because he is a police officer, an agent of the government. That seems to be the operative point. The issue is not motive, “why did the policeman break and enter and search”, it seems to be:
-was he a police officer or agent of the government?
-did he search outside the bounds of a warrant?
IIRC, the rule so far established is, for example, if your (non-government) employer illegally searches your work locker and finds a dead body, that’s admissible. The police, or the public school authorities, or anyone paid by the government, less likely to be admissible.
Of course, IANAL, and I’m sure there are subtleties to consider.
I don’t agree. As long as we’re stipulating that the “victim” of the search is actually hiring the governmental agent to perform the search, why are we calling it an illegal search? Searches can certainly be performed with consent of the owner of the property. If I’m a federal agent and Tony Montana calls me up and says hey, come into my house and find this body to immunize me from its introduction at trial, I’m going into his house and conducting a lawful search as authorized by his consent, aren’t I? I’d love to hear his argument that his consent was invalid because it was premised upon my implication in his scheme to make the search illegal.
There is a way. An anonymous tip without any corroborating information, no. If the cop calls and gives a really convincing anonymous tip that gives the police some basis for further investigation – say he lies and says there’s a homeless guy that used to hang around there and has gone missing, and that the cop is in the neighborhood all the time and saw X or Y suspicious behavior so he peeked in the window, or whatever – and that leads to probable cause that they’ll discover the body, then it could happen.
I think the question is actually,
– was he acting as an agent of the government?
It’s a subtle, but important difference. Remember, if the police ask someone (not a cop) to break in and search, that’s still a police search, because the person is acting for the police. It’s not a question of permanent identity – the person is certainly not a full-time police officer, or even a part-time police officer. But they are --when they break in – acting for the police.
And motive does come in when we’re talking about the corrupt cop. If he was legitimately doing the kind of work the Police Department hired him to do, then he’s acting as an agent of the police, clearly. But if he’s doing something because the mafia paid him to do it, that’s very clearly NOT doing what the Department hired him to do. So motive does matter.
Again, the assumption is going to be that a police office is, even off duty, acting as an agent of the police. I mean, the police don’t get to do illegal searches just by clocking out, finding evidence as a private citizen, then clocking back in and arresting the perp. So it’s going to be very very rare and very hard to ever prove that an officer was not acting as an agent of the police.
But we’re talking about theoretical loopholes, and I’m saying if all the facts were known and provable, there is no theoretical loophole here – legally speaking, the mafia can’t bribe a cop to perform an illegal search and have the resulting evidence suppressed forever.
The legal system isn’t always efficient, but it’s generally not completely stupid when facing these kinds of loopholes.