Fruit of the Poisonous Tree -- how far does it extend?
Barry Gold
agent set up illegal surveillance in a mosque. The shows "heroes"
found the tapes and used them to find somebody who had spoken angrily
about something. They interviewed him, and obtained the name of the
person behind the bombings.
So we have a chain: illegal evidence -> witness -> name of suspect.
In the show, the suspect ended up dead, killed as he tried to detonate
yet another bomb by remote control. But if the suspect had survived,
would the evidence of the witness be usable against him? The remote
controls and computer he had with him when he was arrested?
WOuld it be excluded as "fruit of the poisonous tree"? Or does the
intervention of another witness make it sufficiently remote that it
could be used?
--
Barry Gold, webmaster:
Alarums & Excursions, Xenofilkia: http://places.to/xeno
Conchord: http://www.conchord.org
Los Angeles Science Fantasy Society, Inc.: http://www.lasfsinc.org
atlas bugged
news:7344637...@irys.nyx.net...
> On tonight's episode of the TV show _Lie to Me_, a rogue former FBI
> agent set up illegal surveillance in a mosque. The shows "heroes"
> found the tapes and used them to find somebody who had spoken angrily
> about something. They interviewed him, and obtained the name of the
> person behind the bombings.
It's my 2nd favorite TV show right now. I saw the show, but they're often
dense with detail, so this is off-the-cuff:
Common myth (and, indeed, a great deal of low-IQ jurisprudence) holds that
Constitutional "rights" are enforceable against everyone but the actor. In
truth, however, they are limitations on government only. There is no such
thing, for example, as freedom of speech or religion for you when you are in
my home, with reference to me. So, starting from there, let us proceed....
>
> So we have a chain: illegal evidence -> witness -> name of suspect.
>
> In the show, the suspect ended up dead, killed as he tried to detonate
> yet another bomb by remote control. But if the suspect had survived,
> would the evidence of the witness be usable against him? The remote
> controls and computer he had with him when he was arrested?
>
> WOuld it be excluded as "fruit of the poisonous tree"? Or does the
> intervention of another witness make it sufficiently remote that it
> could be used?
While "remoteness" can matter (as well as doctrines like "inevitable
discovery,") the key here is that Lightman Group, LLC., is a *private*
concern, even though acting on behalf of or contracted by government
agencies. That ends it right there.
--
Atlas Bugged, 3:37 am Saturday, May 16, 2009
SERENITY/FIREFLY FAQ
http://FF-FAQ.notlong.com "One page, all you need to know, referenced."
WHO IS ATLAS BUGGED?
http://bugged4.notlong.com "Attorney, Sci-Fi-O-Phile, and some other
stuff."
[newer...] http://kukpedia.notlong.com
mm
wrote:
>On tonight's episode of the TV show _Lie to Me_, a rogue former FBI
I thought he would have to be a current FBI agent for it to be fruit
of the poisonous tree.
>
>WOuld it be excluded as "fruit of the poisonous tree"? Or does the
>intervention of another witness make it sufficiently remote that it
>could be used?
If the government**, had done the illegal surveilance, my amateur
opinion is that it would still be barred. So I would say No to your
question here.
One episode of Law & Order implied that if tangible evidence is
gathered by a civilian, there is a chain-of-custody problem, but it
seems to me that the police who recovered the evidence from the
civilian could have done whatever is necessery to identify it, for
comparison to a brick found at the scene of the crime, just as if a
cop had first found it, and that the civilian can testify where she
found it (in the back yard of someone related to a bombing where a
brick was involved) How much moreso could former FBI agent testify to
that? If applicable, his rogueness could be used to try to discredit
him.
Robert Bonomi
>On tonight's episode of the TV show _Lie to Me_, a rogue former FBI
>agent set up illegal surveillance in a mosque. The shows "heroes"
>found the tapes and used them to find somebody who had spoken angrily
>about something. They interviewed him, and obtained the name of the
>person behind the bombings.
>
>So we have a chain: illegal evidence -> witness -> name of suspect.
>
>In the show, the suspect ended up dead, killed as he tried to detonate
>yet another bomb by remote control. But if the suspect had survived,
>would the evidence of the witness be usable against him? The remote
>controls and computer he had with him when he was arrested?
>
>WOuld it be excluded as "fruit of the poisonous tree"? Or does the
>intervention of another witness make it sufficiently remote that it
>could be used?
Given that the first party was, you say, a _former_ agent, and postulating
that said party had -not- been asked, or encouraged in any way, by present
government agents to do the surveillance, said surveillance evidence is
not tainted by any _governmental_ illegal activity. Thus, it would seem
to be entirely admissible.
In general, 'fruit of the poisonous tree' extends to _anything_ that was
obtained "as a result of" having the poisoned information. Pretty much
anything that comes into ones hands chronologically after the poisoning
is suspect, _unless_ one can show that one did, in fact, get it without
any reliance on the poisoned knowledge. *OR* one can show that one _would_,
in all likelihood, have found that evidence anyway, without the benefit of
the poisoned source.
A hypothetical: An arrested thief is found in possession of some pawn
tickets. No doubt as to _what_ they are, they're labelled that way; but
there is only an abstract symbol on the ticket identifying the pawnshop.
A canvass of pawnshops is started, to attempt to identify the symbol. At
some point after that, a LEO conducts an illegal search of the per p's
residence, and finds a receipt with a pawnshop name on it. Taking the
previously impounded tickets to _that_ shop, the cops find that yes, those
tickets were that shops, and that the items pawned were from a the recent
burglary.
Defense _will_ try to get the evidence from the pawnshop suppressed, as
being poisonous fruit of the illegal search. A good prosecutor will
argue -- with a high degree of success -- that it was only a matter of
time until the canvass got to that pawnshop, whereupon the evidence in
dispute would have inevitably discovered, that, thusly, there is no basis
to suppress.
slide
> On tonight's episode of the TV show _Lie to Me_, a rogue former FBI
> agent set up illegal surveillance in a mosque. The shows "heroes"
> found the tapes and used them to find somebody
[made a recording]
>
> WOuld it be excluded as "fruit of the poisonous tree"? Or does the
> intervention of another witness make it sufficiently remote that it
> could be used?
Not my area of expertise, but you aren't paying me either so....
IMO, there is nothing illegal about the taping / recording because it
was not done by a LEO. Thus had this proceeded to court, it would have
been admissible. Thus the tree isn't poisonous and its fruit is ok too.
atlas bugged
news:qYCdnSVC9-2NW5DX...@posted.nuvoxcommunications...
> In article <7344637...@irys.nyx.net>, Barry Gold <bg...@nyx.net>
> wrote:
>>On tonight's episode of the TV show _Lie to Me_, a rogue former FBI
>>agent set up illegal surveillance in a mosque. The shows "heroes"
>>found the tapes and used them to find somebody who had spoken angrily
>>about something. They interviewed him, and obtained the name of the
>>person behind the bombings.
>>
>>So we have a chain: illegal evidence -> witness -> name of suspect.
>>
>>In the show, the suspect ended up dead, killed as he tried to detonate
>>yet another bomb by remote control. But if the suspect had survived,
>>would the evidence of the witness be usable against him? The remote
>>controls and computer he had with him when he was arrested?
>>
>>WOuld it be excluded as "fruit of the poisonous tree"? Or does the
>>intervention of another witness make it sufficiently remote that it
>>could be used?
>
> Given that the first party was, you say, a _former_ agent, and postulating
> that said party had -not- been asked, or encouraged in any way, by present
> government agents to do the surveillance, said surveillance evidence is
> not tainted by any _governmental_ illegal activity. Thus, it would seem
> to be entirely admissible.
I cannot remember from the show if the "former" fed was a "current" fed at
the time the recordings were made. If former, we're done, so let's assume
"current." In that instance, I think there's "poison tree" at least at the
outset, even if the officer was acting ultra vires.
I also mentioned in another post that LIE TO ME's (mostly) fictional
"Lightman Group, LLC" is a private entity. The Fourth Amendment has no
bearing on what they do.
>
> In general, 'fruit of the poisonous tree' extends to _anything_ that was
> obtained "as a result of" having the poisoned information. Pretty much
> anything that comes into ones hands chronologically after the poisoning
> is suspect, _unless_ one can show that one did, in fact, get it without
> any reliance on the poisoned knowledge. *OR* one can show that one
> _would_,
> in all likelihood, have found that evidence anyway, without the benefit of
> the poisoned source.
Right, though I've seen extraordinary-circumstance exceptions. From about
1970 until...about right now, the SCOTUS has sought to compromise every
constitutional right in nearly every criminal case. The Duke University
case seems to mark the end of that era.
--
Atlas Bugged, 12:27 pm Saturday, May 16, 2009
Matt Carter
> Barry Gold wrote:
> > On tonight's episode of the TV show _Lie to Me_, a rogue former FBI
> > agent set up illegal surveillance in a mosque. The shows "heroes"
> > found the tapes and used them to find somebody who had spoken angrily
> > about something. They interviewed him, and obtained the name of the
> > person behind the bombings.
> > Would it be excluded as "fruit of the poisonous tree"?
>
> While "remoteness" can matter (as well as doctrines like "inevitable
> discovery,") the key here is that Lightman Group, LLC., is a *private*
> concern, even though acting on behalf of or contracted by government
> agencies. That ends it right there.
I have not seen the show. I am assuming that Lightman Group, LLC
("Lightman") was involved in procuring the evidence illegally. I
respectfully disagree with your conclusion that the evidence would be
admissible. Your statement that Lightman was "acting on behalf of or
contracted by government agencies" makes Lightman an agent of the
government. In that case, courts would exclude the evidence as fruit
of the poisonous tree just as if the government had collected it
directly.
Imagine if the police could simply hire private parties to obtain
evidence and thereby avoid running afoul of the Fourth Amendment.
Such a loophole would make the Fourth Amendment nearly useless.
Seth
Matt Carter <r_q_eins...@yahoo.com> wrote:
>atlas bugged wrote:
>> While "remoteness" can matter (as well as doctrines like "inevitable
>> discovery,") the key here is that Lightman Group, LLC., is a *private*
>> concern, even though acting on behalf of or contracted by government
>> agencies. That ends it right there.
>
>I have not seen the show. I am assuming that Lightman Group, LLC
>("Lightman") was involved in procuring the evidence illegally. I
>respectfully disagree with your conclusion that the evidence would be
>admissible. Your statement that Lightman was "acting on behalf of or
>contracted by government agencies" makes Lightman an agent of the
>government. In that case, courts would exclude the evidence as fruit
>of the poisonous tree just as if the government had collected it
>directly.
I haven't seen it either.
Wouldn't the issue be whether Lightman was *in that particular
instance* action on behalf of the government? The fact that they
happened to have some (or all) government clients isn't the issue, the
issue is whether the government induced them to act in that way.
Which leads to an interesting question: Suppose some group procures
evidence illegally, and as a result is rewarded by the government
subsequently? That evidence is admissible. Now, suppose they
continue doing that sort of thing, without any guidance from any
government agency about what sort of stuff they should look for. Does
it all remain admissible, or is there some point at which they should
be considered a government agent?
Seth
Barry Gold
>> > On tonight's episode of the TV show _Lie to Me_, a rogue former FBI
>> > agent set up illegal surveillance in a mosque. The shows "heroes"
>> > found the tapes and used them to find somebody who had spoken angrily
>> > about something. They interviewed him, and obtained the name of the
>> > person behind the bombings.
>> > [...]
>> > Would it be excluded as "fruit of the poisonous tree"?
>atlas bugged wrote [The LIghtman Group is a private concern, hence no
exclusion]
Matt Carter <r_q_eins...@yahoo.com> wrote:
>I have not seen the show. I am assuming that Lightman Group, LLC
>("Lightman") was involved in procuring the evidence illegally. I
>respectfully disagree with your conclusion that the evidence would be
>admissible. Your statement that Lightman was "acting on behalf of or
>contracted by government agencies" makes Lightman an agent of the
>government.
Lightman Group, LLC was *not* involved in procuring the evidence. A
rogue ex-FBI-agent obtained the evidence, and Lightman got hold of it
and used it to find the witness. *But* Lightman _was_ acting for the
government when he used it.
So I guess the answer is that the evidence (and the witness) can be
used because the person who gathered it was not a government actor.
The subsequent acquisition and use of it by Lightman and the AUSA
probably do not affect that. But if the person who gathered the
evidence had still been employed by the FBI at the time, the evidence
and the witness would have been excluded.
Mike
> Which leads to an interesting question: Suppose some group procures
> evidence illegally, and as a result is rewarded by the government
> subsequently? That evidence is admissible. Now, suppose they
> continue doing that sort of thing, without any guidance from any
> government agency about what sort of stuff they should look for. Does
> it all remain admissible, or is there some point at which they should
> be considered a government agent?
Not sure if this is what you meant about "as a result is rewarded by the
government subsequently?" but what came to mind was "reward of $10,000
for any information leading to the arrest and conviction of the person
responsible for torching the Acme building." I follow the coyote to his
lair where I break in illegally and find evidence that he torched the
building due to his displeasure of the way their products kept
backfiring. I turn this evidence in to the DA and the coyote is
convicted and sentenced to 20 years of breaking rocks (something he's
really good at, it seems) and I collect the $10k. Now was I an agent of
the state where the coyote can get this conviction overturned, since the
state offered a reward BEFORE I did the illegal act?
Matt Carter
>
> the key here is that Lightman Group, LLC., is a *private*
> concern, even though acting on behalf of or contracted by government
> agencies. That ends it right there.
Based on Barry Gold's May 20th clarification that Lightman (who was
acting as a government agent when it got hold of the evidence) is
*not* the entity that originally procured the evidence illegally, I
now agree that the evidence is admissible.
However, I disagree with Atlas Bugged's above reasoning. The evidence
is admissible, not because Lightman is a private concern, but because
the rogue ex-FBI-agent who originally illegally procured the evidence
was not acting as a government agent in doing so.
The primary purpose of the Exclusionary Rule (closely related to the
"Fruit of the Poisonous Tree" doctrine) is to deny the government any
benefit of illegally obtained evidence. By making such evidence
inadmissible, the rule seeks to remove any incentive for the
government to obtain evidence illegally. If the government did
nothing wrong in obtaining a given piece of evidence (as in the
fictitious example discussed in this thread), then the rule doesn't
apply, and the evidence is generally admissible.
Matt Carter
>
> Suppose some group procures
> evidence illegally, and as a result is rewarded by the government
> subsequently? That evidence is admissible. Now, suppose they
> continue doing that sort of thing, without any guidance from any
> government agency about what sort of stuff they should look for. Does
> it all remain admissible, or is there some point at which they should
> be considered a government agent?
Interesting question. IANAL, but here's my $0.02:
First, a side note:
The government could skirt this agency issue by adding some fine print
when it offers a reward for evidence leading to the arrest and
conviction of a perpetrator of a given crime. The fine print could
say, "Offer void if evidence obtained illegally."
Addressing your question:
Without any right of control by the government over the group, there
would never be actual agency. Furthermore, without any manifestation
by the government that the group acts on its behalf, there would never
be apparent agency. So, without agency, the evidence would always be
admissible.
A final side note:
This scenario is unrealistic because either the group would get
prosecuted for its repeated crimes, or the prosecutor would get
reprimanded/sanctioned/fired/disbarred for abusing his prosecutorial
discretion in not prosecuting the group.
Matt Carter
>
> "reward of $10,000
> for any information leading to the arrest and conviction of the person
> responsible for torching the Acme building." I follow the coyote to his
> convict Mr. Coyote] and I collect the $10k. Now was I an agent of
> the state where the coyote can get this conviction overturned [...]?
The evidence is admissible because you were NOT an agent of the
government when you broke into the coyote's lair, even though you
received payment from the government for getting the evidence.
To understand why this is so, we need to look at the elements of
agency. Quoting Restatement Third, Agency Section 1.01:
"As defined by the common law, the concept of agency posits a
consensual relationship in which one person, to one degree or another
or respect or another, acts as a representative of or otherwise acts
on behalf of another person with power to affect the legal rights and
duties of the other person. The person represented has a right to
control the actions of the agent."
Here are some reasons why you do not meet the elements of being a
government agent in your hypothetical scenario:
1. By offering the $10,000 reward, the government did not consent for
you to act as its representative or on its behalf.
2. The government had no right to control you as you obtained
information leading to the arrest and conviction of the arsonist.
3. The government did not, and could not, grant you authority to
perform an illegal act. Breaking and entering the coyote's lair falls
outside the scope of any authorization that the government may (for
the sake of argument) have given you.
You might try to argue that the government ratified your conduct by
paying you $10,000 for your services, thereby triggering the legal
consequences of agency without actual agency. However, that theory
fails for several reasons as I will explain below:
Quoting Restatement Third, Agency Section 4.01:
"(1) Ratification is the affirmance of a prior act done by another,
whereby the act is given effect as if done by an agent acting with
actual authority. (2) A person ratifies an act by (a) manifesting
assent that the act shall affect the person's legal relations, or (b)
conduct that justifies a reasonable assumption that the person so
consents. (3) Ratification does not occur unless (a) the act is
ratifiable, (b) the person ratifying has capacity, (c) the
ratification is timely, and (d) the ratification encompasses the act
in its entirety."
The facts of your scenario fail to meet elements (2) and (3)(d) of
ratification:
(2): By paying you $10,000, the government is not manifesting assent
that it would be legally responsible for you illegally breaking into
the coyote's lair. The payment of $10,000 was merely to fulfill its
pre-existing promise.
(3)(d): The payment of the $10,000 encompasses your obtaining the
evidence. It does not encompass your crime of breaking and entering
prior to obtaining the evidence.
atlas bugged
news:8a55a3d9-3d58-41b5...@e21g2000yqb.googlegroups.com...
The problem is the exclusionary was a ham-handed - and ultimately stupid -
solution to government misconduct. Even the way you phrase it - "remove
incentive...to obtain evidence illegally" - exposes the problem.
We don't "remove incentives" for people to break the law, we punish them,
and that is also how we deter the would-be law-breakers.
Exclusion is worthy only in fringe cases, such as this one reported by CBS:
http://offbill.notlong.com
My comment regarding "private action" having no Fourth Amendment effect was
true, though context can render it incorrect, such as contracting out police
work to private firms.
But a police officer who breaks the law to catch another law-breaker needs
to just share a cell with the perp.
It isn't quite that simple in practice, but conceptually, it is just that
simple.
My favorite shows are HOUSE and LIE TO ME, and this is partly because I need
a second viewing to catch all the detail in either one. So I'm not actually
sure of the precise hypothetical incident under discussion.
--
Atlas Bugged, 10:53 pm Sunday, May 24, 2009
Seth
Matt Carter <r_q_eins...@yahoo.com> wrote:
>This scenario is unrealistic because either the group would get
>prosecuted for its repeated crimes, or the prosecutor would get
>reprimanded/sanctioned/fired/disbarred for abusing his prosecutorial
>discretion in not prosecuting the group.
You mean like happens when they fail to prosecute police officers when
the latter persistently and consistently violate the law? Who is
going to reprimand or fire an elected DA for successfully prosecuting
dangerous high-profile criminals and ignoring relatively minor crimes
in the process?
Seth
Seth
Mike <prab...@shamrocksgf.com> wrote:
>Seth wrote:
>> Which leads to an interesting question: Suppose some group procures
>> evidence illegally, and as a result is rewarded by the government
>> subsequently? That evidence is admissible. Now, suppose they
>> continue doing that sort of thing, without any guidance from any
>> government agency about what sort of stuff they should look for. Does
>> it all remain admissible, or is there some point at which they should
>> be considered a government agent?
>
>Not sure if this is what you meant about "as a result is rewarded by the
>government subsequently?" but what came to mind was "reward of $10,000
>for any information leading to the arrest and conviction of the person
>responsible for torching the Acme building." I follow the coyote to his
>lair where I break in illegally and find evidence that he torched the
>building
In this case, you weren't an agent of the government (and I already
specified the evidence you gathered was admissible).
Now do similar things 20 or 50 times a year for a few years, earning a
good living at it. Is there a point where you'd be considered a
government agent?
Seth
Mike
> Here are some reasons why you do not meet the elements of being a
> government agent in your hypothetical scenario:
>
> 1. By offering the $10,000 reward, the government did not consent for
> you to act as its representative or on its behalf.
>
> 2. The government had no right to control you as you obtained
> information leading to the arrest and conviction of the arsonist.
>
> 3. The government did not, and could not, grant you authority to
> perform an illegal act. Breaking and entering the coyote's lair falls
> outside the scope of any authorization that the government may (for
> the sake of argument) have given you.
Basically you're saying that "agent" vs "non-agent" here is somewhat
like "employee" vs "contractor" (where an employer has more control over
an employee as to "how, where, when and what" and a contractor is often
given free-reign as to when he works, etc. as long as he "gets the job
done" by a set date/time, etc.)
In the case of "reward: dead or alive" the government isn't saying HOW
to get the bad guy so you're saying the government doesn't create an
agency relationship there, right?
Stuart A. Bronstein
> The problem is the exclusionary was a ham-handed - and ultimately
> stupid - solution to government misconduct. Even the way you
> phrase it - "remove incentive...to obtain evidence illegally" -
> exposes the problem.
When the Supreme Court introduced the exclusionary rule they admitted
it was not an ideal way to approach this issue. However they found
that no other approach that had been used was effective to stop
police from making illegal searches. If someone were to come up with
an approach that would work as well, I'm sure the court would love to
hear it. But after all these years that hasn't happened.
> We don't "remove incentives" for people to break the law, we
> punish them, and that is also how we deter the would-be
> law-breakers.
Excluding evidence was apparently the only kind of punishment that
worked to lower the level of illegal searches.
> My comment regarding "private action" having no Fourth Amendment
> effect was true, though context can render it incorrect, such as
> contracting out police work to private firms.
If the police contract with a private firm, when the private firm is
working on behalf of the police it is no longer private action. If
they were allowed to do that with impunity, it would be a loophole
that would swallow the rule.
> But a police officer who breaks the law to catch another
> law-breaker needs to just share a cell with the perp.
Sure, but it doesn't happen. You can't force prosecutors to
prosecute or juries of non-lawyers to convict someone in cases like
that.
> It isn't quite that simple in practice, but conceptually, it is
> just that simple.
Of course. But in practice it apparently doesn't work.
Stu
atlas bugged
news:Xns9C175703B56D7s...@130.133.1.4...
> "atlas bugged" <atlasbug...@gmail.com> wrote:
>
>> The problem is the exclusionary was a ham-handed - and ultimately
>> stupid - solution to government misconduct. Even the way you
>> phrase it - "remove incentive...to obtain evidence illegally" -
>> exposes the problem.
>
> When the Supreme Court introduced the exclusionary rule they admitted
> it was not an ideal way to approach this issue.
Check.
>However they found
> that no other approach that had been used was effective to stop
> police from making illegal searches.
Cite? They may have stated this, but there was no true "test."
>If someone were to come up with
> an approach that would work as well, I'm sure the court would love to
> hear it. But after all these years that hasn't happened.
>From where do you get this conclusion?
It's simply untrue. In my practice, I sue municipalities - and officers -
routinely.
It's limited in scope, but even in current practice, it's far more effective
than exclusion.
>
>> We don't "remove incentives" for people to break the law, we
>> punish them, and that is also how we deter the would-be
>> law-breakers.
>
> Excluding evidence was apparently the only kind of punishment that
> worked to lower the level of illegal searches.
Apparently? What makes this "apparent?"
>
>> My comment regarding "private action" having no Fourth Amendment
>> effect was true, though context can render it incorrect, such as
>> contracting out police work to private firms.
>
> If the police contract with a private firm, when the private firm is
> working on behalf of the police it is no longer private action. If
> they were allowed to do that with impunity, it would be a loophole
> that would swallow the rule.
Definitely.
>
>> But a police officer who breaks the law to catch another
>> law-breaker needs to just share a cell with the perp.
>
> Sure, but it doesn't happen.
It did before the exclusionary rule.
It's a function of law.
Bad law - like the exclusionary rule - tends to drive out good law - like
holding *all* trespassers, burglars, assaulters, etc., equally accountable
under the law.
Quite frankly, anything short of that standard is literally un-American and
immoral. Which brings us back to the exclusionary rule....
>You can't force prosecutors to
> prosecute or juries of non-lawyers to convict someone in cases like
> that.
You can easily. A cop or prosecutor has a higher burden than a citizen to
stay within the law for reasons which should be obvious.
If juries did not want to enforce the law, I agree, that would end it (there
could not be jail or loss of property.)
But a public servant is not entitled to full due process WRT his or her job
(and shouldn't be.) *That* can be terminated administratively and by force
of law (and should be.)
>
>> It isn't quite that simple in practice, but conceptually, it is
>> just that simple.
>
> Of course. But in practice it apparently doesn't work.
Can you put some meat on those bones? "Apparently?" It's not apparent to
me.
--
Atlas Bugged, 8:56 pm Wednesday, May 27, 2009
Matt Carter
>
> Basically you're saying that "agent" vs "non-agent" here is somewhat
> like "employee" vs "contractor" (where an employer has more control over
> an employee as to "how, where, when and what" and a contractor is often
> given free-reign as to when he works, etc. as long as he "gets the job
> done" by a set date/time, etc.)
Your parenthetical characterization of an employee vs. an independent
contractor is accurate.
However, it would be potentially misleading say that "'agent' vs 'non-
agent' is somewhat like 'employee' vs 'contractor'". Agency status is
independent of employee / contractor status. A person can be one, the
other, neither, or both.
Degree of control is an issue in the question of "employee" vs
"contractor".
_Right_ of control is a key issue in the question of "agent" vs "non-
agent".
Just because a principal doesn't _exercise_ any control over an agent
doesn't avoid the agency relationship.
An example of an independent contractor agent is the real estate agent
you use to help you sell your house. (He's still your agent, whether
you exercise any control over him or not.)
An example of an employee agent is a retail store salesperson or a
police officer (the principal being the retail corporation or the
government, respectively).
An example of an employee non-agent is a supervised assembly line
worker who screws caps on bottles and has no interaction with anyone
outside the company.
An example of an independent contractor non-agent is the dry cleaner
to whom you take your clothes for cleaning.
An agent is an _employee_ agent if the principal has a right of
control over the agent's _physical_ performance. Consequently, the
principal is liable to third parties for physical injury torts
committed by its employee agent in the scope of employment. That is
why you (a third party) can successfully sue FedEx (the principal)
when a FedEx driver (the employee agent) rear-ends your car.
On the other hand, in the case of a non-employee agent, such as your
real estate agent, you have no right of control over his physical
performance, so you are not liable to the potential buyer he
accidentally pushes down the stairs while showing your house.
> In the case of "reward: dead or alive" the government isn't saying HOW
> to get the bad guy so you're saying the government doesn't create an
> agency relationship there, right?
Well, not quite. True, there is no agency relationship there, but not
because the government didn't say HOW to get the evidence. When you
use a real estate agent to sell your house, you don't say HOW to
market your house, but he's still your agent. When you hire a lawyer
to represent you in court, you don't say HOW he should argue in court,
but he's still your agent.
Back to your scenario: The reason why the person obtaining evidence
leading to the arrest and conviction of the arson perpetrator is not a
government agent is, as I said in my May 23rd post to which you've
just replied, at least threefold:
1. The government did not consent for you to act as its
representative.
2. The government had no (particular) right of control over you.
3. Even, arguendo, if the government had granted you some authority,
it could not grant you authority to perform an illegal act (breaking
and entering to obtain evidence).
You can read about the law of agency in bits and pieces online.
Here's a concise, informative primer:
http://www.lectlaw.com/files/lws46.htm
For more detailed definitions, discussions, examples, and references
to actual cases, have a look at Restatement of the Law (3rd), Agency.
It runs a couple hundred dollars, but you can get the softbound
student edition for seventy five dollars here:
http://snurl.com/iw9jv
I also just noticed that the entire thing, minus discussions,
examples, and case references, can be found online here:
http://snurl.com/iw97j
Stuart A. Bronstein
> Basically you're saying that "agent" vs "non-agent" here is
> somewhat like "employee" vs "contractor" (where an employer has
> more control over an employee as to "how, where, when and what"
> and a contractor is often given free-reign as to when he works,
> etc. as long as he "gets the job done" by a set date/time, etc.)
No, that's not correct. It has to do with who took the initiative to
make the illegal search. If it is someone employed by the governement,
it's state action, whether the actual snooping was done by an employee
or an independent contractor. If it is initiated by someone who is not
a government agent or employee, it's not state action.
> In the case of "reward: dead or alive" the government isn't saying
> HOW to get the bad guy so you're saying the government doesn't
> create an agency relationship there, right?
The governement might be creating an agency relationship, but it will
not be state action.
Stu
Matt Carter
>
> The government might be creating an agency relationship
No. The government certainly wouldn't be creating an agency
relationship given the facts of the hypothetical in Mike's May 20 post
to which we're responding. I've explained the reasons for this
elsewhere in this thread.
You wrote "The government might be creating an agency relationship,
but it will not be state action."
If the government were creating an agency relationship with the party
who obtained the evidence (and obtaining the evidence is within the
scope of the agency relationship), then the obtaining of the evidence
_would_ be a state action.
Matt Carter
>
> Agency status is independent of
> employee / contractor status.
> An example of an employee non-agent is a
> supervised assembly line worker who screws
> caps on bottles and has no interaction with
> anyone outside the company.
I just realized, upon further research, that my statement above was
wrong.
( Why didn't any of you legal gurus correct me? ;-) )
An employee is _always_ an agent of the employer, regardless of
whether the employee is interacting directly with people external to
the employer.
A person who is employed by another (a "master") to perform service in
the master's affairs, and whose physical conduct in the performance of
the services is controlled or is subject to the right of control by
the master, is an "employee agent" under agency law. (See Restatement
Second, Agency, Section 2, Part 2.)
All employees are agents.
Not all agents are employees.
Agents who are not employees are independent contractors.
Not all independent contractors are agents.
A Venn diagram is a useful way to visualize the relationships:
Emplys. Indp Cntrctrs
V V V V V V V
+------+--------------+
A -> | | |
g -> | Empl | Indp Ctrctrs |
e -> | | |
n -> | Agnt | Agnt |
t -> | | |
s -> | | |
+------+--------------+
| |
| Indp Ctrctrs |
| |
+--------------+
I believe that everything else I said in my parent post is correct.