SEARCH AND SEIZURE - 4th amendment & exclsuionary rule US v BOYD

[Bob Hurt]

 

From: darren michaels
Sent: Wednesday, December 09, 2009 8:02 PM
To: Bob Hurt
Subject: SEARCH AND SEIZURE - 4th amendment & exclsuionary rule US v BOYD

 

Enforcing the Fourth Amendment: The Exclusionary Rule A right to be free from unreasonable searches and seizures is
declared by the Fourth Amendment, but how this right translates into concrete terms is not specified. Several possible methods of enforcement have been suggested, but only one—the exclusionary rule—has been applied with any frequency by the Supreme Court, and the Court in recent years has limited its application.

Alternatives to the Exclusionary Rule.—Theoretically, there are several alternatives to the exclusionary rule. An illegal
search and seizure may be criminally actionable and officers undertaking one thus subject to prosecution, but the examples when officers are criminally prosecuted for overzealous law enforcement are extremely rare. 353 A policeman who makes an illegal search and seizure is subject to internal departmental discipline which may be backed up in the few jurisdictions which have adopted them by the oversight of police review boards, but again the examples of disciplinary actions are exceedingly rare. 354
Persons who have been illegally arrested or who have had their privacy invaded will usually have a tort action available
under state statutory or common law. Moreover, police officers acting under color of state law who violate a person’s Fourth Amendment rights are subject to a suit for damages and other remedies 355 under a civil rights statute in federal courts. 356 While federal officers and others acting under color of federal law are not subject to this statute, the Supreme Court has recently held that a right to damages for violation of Fourth Amendment rights arises by implication and that this right is enforceable in federal courts. 357 While a damage remedy might be made more effectual, 358 a number of legal and practical problems stand in the way. 359 Police officers have available to them the usual commonlaw defenses, most important of which is the claim of good faith. 360 Federal officers are entitled to qualified immunity based on an objectively reasonable belief that a warrantless search later determined to violate the Fourth Amendment was supported by probable cause or exigent circumstances. 361 And on the practical side, persons subjected to illegal arrests and searches and seizures are often disreputable persons toward whom juries are unsympathetic, or they are indigent and unable to bring suit. The result, therefore, is that the Court has emphasized exclusion of unconstitutionally seized evidence in subsequent criminal trials as the only effective enforcement method.

Development of the Exclusionary Rule.—Exclusion of evidence as a remedy for Fourth Amendment violations found its beginning
in Boyd v. United States, 362 which, as was noted above, involved not a search and seizure but a compulsory production of
business papers, which the Court likened to a search and seizure. Further, the Court analogized the Fifth Amendment’s self-incrimination provision to the Fourth Amendment’s protections to derive a rule which required exclusion of the compelled evidence because the defendant had been compelled to incriminate himself by producing it. 363 The Boyd case was closely limited to its facts and an exclusionary rule based on Fourth Amendment violations was rejected by the Court a few years later, with the Justices adhering to the common-law rule that evidence was admissible however acquired.364

Nevertheless, ten years later the common-law view was itself rejected and an exclusionary rule propounded in Weeks v. United
States. 365 Weeks had been convicted on the basis of evidence seized from his home in the course of two warrantless searches; some of the evidence consisted of private papers like those sought to be compelled in the Boyd case. Unanimously, the Court held that the evidence should have been excluded by the trial court. The Fourth Amendment, Justice Day said, placed on the courts as well as on law enforcement officers restraints on the exercise of power compatible with its guarantees. ‘‘The tendency of those who execute the criminal laws of the country to obtain convictions by means of unlawful searches and enforced confessions . . . should find no sanction in the judgment of the courts which are charged at all times with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights.’’ 366 The ruling is ambiguously based but seems to have had as its foundation an assumption that admission of illegally-seized evidence would itself violate the Amendment. ‘‘If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secured against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution.

The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the
sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land.’’ 367

Because the Fourth Amendment does not restrict the actions of state officers, 368 there was originally no question about the application of an exclusionary rule in state courts 369 as a mandate of federal constitutional policy. 370 But in Wolf v. Colorado, 371 a unanimous Court held that freedom from unreasonable searches and seizures was such a fundamental right as to be protected against state violations by the due process clause of the Fourteenth Amendment. 372 However, the Court held that the right thus guaranteed did not require that the exclusionary rule be applied in the state courts, since there were other means to observe and enforce the right. ‘‘Granting that in practice the exclusion of evidence may be an effective way of deterring unreasonable searches, it is not for this Court to condemn as falling below the minimal standards assured by the Due Process Clause a State’s reliance upon other methods which, if consistently enforced, would be equally effective

349 Id. at 313-24.
350 Id. at 320.
351 See United States v. Butenko, 494 F.2d 593 (3d Cir.), cert. denied, 419 U.S.
881 (1974); Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975), cert. denied, 425 U.S.
944 (1976), appeal after remand 565 F.2d 742 (D.C. Cir. 1977), on remand, 444 F.
Supp. 1296 (D.D.C. 1978), aff’d. in part, rev’d. in part, 606 F.2d 1172 (D.C. Cir.
1979), cert. denied, 453 U.S. 912 (1981); Smith v. Nixon, 606 F.2d 1183 (D.C. Cir.
1979), cert. denied, 453 U.S. 912 (1981); United States v. Truong Ding Hung, 629
F.2d 908 (4th Cir. 1980), after remand, 667 F.2d 1105 (4th Cir. 1981); Halkin v.
Helms, 690 F.2d 977 (D.C. Cir. 1982).
352 Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, 92 Stat.
1797, 50 U.S.C. §§ 1801-1811. See United States v. Belfield, 692 F.2d 141 (D.C. Cir.
1982) (upholding constitutionality of disclosure restrictions in Act).
353 Edwards, Criminal Liability for Unreasonable Searches and Seizures, 41 VA.
L. REV. 621 (1955).
354 Goldstein, Police Policy Formulation: A Proposal for Improving Police Performance,
65 MICH. L. REV. 1123 (1967).
355 If there are continuing and recurrent violations, federal injunctive relief
would be available. Cf. Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966); Wheeler
v. Goodman, 298 F. Supp. 935 (preliminary injunction), 306 F. Supp. 58 (permanent
injunction) (W.D.N.C. 1969), vacated on jurisdictional grounds, 401 U.S. 987 (1971).
356 42 U.S.C. § 1983 (1964). See Monroe v. Pape, 365 U.S. 167 (1961). In some
circumstances, the officer’s liability may be attributed to the municipality. Monell
v. New York City Dep’t of Social Services, 436 U.S. 658 (1978). These claims that
officers have used excessive force in the course of an arrest or investigatory stop are
to be analyzed under the Fourth Amendment, not under substantive due process.
The test is ‘‘whether the officers’ actions are ‘objectively reasonable’ under the facts
and circumstances confronting them.’’ Graham v. Connor, 490 U.S. 386, 397 (1989).
357 Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). The possibility
had been hinted at in Bell v. Hood, 327 U.S. 678 (1946).
358 See, e.g., Chief Justice Burger’s dissent in Bivens v. Six Unknown Fed. Narcotics
Agents, 403 U.S. 388, 411, 422-24 (1971), which suggests suit against the Government
in a special tribunal and the abolition of the exclusionary rule.
359 Foote, Tort Remedies for Police Violations of Individual Rights, 39 MINN. L.
REV. 493 (1955).
360 This is the rule in actions under 42 U.S.C. § 1983, Pierson v. Ray, 386 U.S.
547 (1967), and on remand in Bivens the Court of Appeals promulgated the same
rule to govern trial of the action. Bivens v. Six Unknown Named Agents of the Federal
Bureau of Narcotics, 456 F.2d 1339 (2d Cir. 1972).
361 Anderson v. Creighton, 483 U.S. 635 (1987). The qualified immunity inquiry
‘‘has a further dimension’’ beyond what is required in determining whether a police
officer used excessive force in arresting a suspect: the officer may make ‘‘a reasonable
mistake’’ in his assessment of what the law requires. Saucier v. Katz, 533 U.S.
194, 205-206 (2001). See also Malley v. Briggs, 475 U.S. 335, 345 (1986) (qualified
immunity protects police officers who applied for a warrant unless ‘‘a reasonably
well-trained officer in [the same] position would have known that his affidavit failed
to establish probable cause and that he should not have applied for a warrant’’).
362 116 U.S. 616 (1886).
363 ‘‘We have already noticed the intimate relation between the two Amendments.
They throw great light on each other. For the ‘unreasonable searches and
seizures’ condemned in the Fourth Amendment are almost always made for the purpose
of compelling a man to give evidence against himself, which in criminal cases
is condemned in the Fifth Amendment; and compelling a man in a criminal case
to be a witness against himself, which is condemned in the Fifth Amendment,
throws light on the question as to what is an ‘unreasonable search and seizure’
within the meaning of the Fourth Amendment. And we have been unable to perceive
that the seizure of a man’s private books and papers to be used in evidence against
him is substantially different from compelling him to be a witness against himself.
We think it is within the clear intent and meaning of those terms.’’ Id. at 633. It
was this utilization of the Fifth Amendment’s clearly required exclusionary rule,
rather than one implied from the Fourth, on which Justice Black relied, and absent
a Fifth Amendment self-incrimination violation he did not apply such a rule. Mapp
v. Ohio, 367 U.S. 643, 661 (1961) (concurring opinion); Coolidge v. New Hampshire,
403 U.S. 443, 493, 496-500 (1971) (dissenting opinion). The theory of a ‘‘convergence’’
of the two Amendments has now been disavowed by the Court. See discussion,
supra, under ‘‘Property Subject to Seizure.’’
364 Adams v. New York, 192 U.S. 585 (1904). Since the case arose from a state
court and concerned a search by state officers, it could have been decided simply
by holding that the Fourth Amendment was inapplicable. See National Safe Deposit
Co. v. Stead, 232 U.S. 58, 71 (1914).
365 232 U.S. 383 (1914).
366 Id. at 392.
367 Id. at 393.
368 Smith v. Maryland, 59 U.S. (18 How.) 71, 76 (1855); National Safe Deposit
Co. v. Stead, 232 U.S. 58, 71 (1914).
369 The history of the exclusionary rule in the state courts was surveyed by Justice
Frankfurter in Wolf v. Colorado, 338 U.S. 25, 29, 33-38 (1949). The matter was
canvassed again in Elkins v. United States, 364 U.S. 206, 224-32 (1960).
370 During the period in which the Constitution did not impose any restrictions
on state searches and seizures, the Court permitted the introduction in evidence in
federal courts of items seized by state officers which had they been seized by federal
officers would have been inadmissible, Weeks v. United States, 232 U.S. 383, 398
(1914), so long as no federal officer participated in the search, Byars v. United
States, 273 U.S. 28 (1927), or the search was not made on behalf of federal law enforcement
purposes. Gambino v. United States, 275 U.S. 310 (1927). This rule became
known as the ‘‘silver platter doctrine’’ after the phrase coined by Justice
Frankfurter in Lustig v. United States, 338 U.S. 74, 78-79 (1949): ‘‘The crux of that
doctrine is that a search is a search by a federal official if he had a hand in it; it
is not a search by a federal official if evidence secured by state authorities is turned
over to the federal authorities on a silver platter.’’ In Elkins v. United States, 364
U.S. 206 (1960), the doctrine was discarded by a five-to-four majority which held
that inasmuch as Wolf v. Colorado, 338 U.S. 25 (1949), had made state searches and
seizures subject to federal constitutional restrictions through the Fourteenth
Amendment’s due process clause, the ‘‘silver platter doctrine’’ was no longer constitutionally
viable. During this same period, since state courts were free to admit
any evidence no matter how obtained, evidence illegally seized by federal officers
could be used in state courts, Wilson v. Schnettler, 365 U.S. 381 (1961), although
the Supreme Court ruled out such a course if the evidence had first been offered
in a federal trial and had been suppressed. Rea v. United States, 350 U.S. 214
(1956).
371 338 U.S. 25 (1949).
372 ‘‘The security of one’s privacy against arbitrary intrusion by the police—
which is at the core of the Fourth Amendment—is basic to a free society. It is therefore
implicit in ‘the concept of ordered liberty’ and as such enforceable against the
States through the Due Process Clause.’’ Id. at 27-28.
373 Id. at 31. Justices Douglas, Murphy, and Rutledge dissented with regard to
the issue of the exclusionary rule and Justice Black concurred.

---

Windows 7: Unclutter your desktop. Learn more.

No virus found in this incoming message.
Checked by AVG - www.avg.com
Version: 9.0.709 / Virus Database: 270.14.98/2552 - Release Date: 12/09/09 02:32:00