The Exclusionary Rule

reasons for ER

· To give meaning to the constitutional protections
· To keep the courts from being a participant in unconstitutional conduct by law enforcement
· To send a strong message to society about the importance of these constitutional protections
· To deter unconstitutional conduct by the police!!!! (emphasis)

who has standing?

· TEST
o Do they have a legitimate expectation of privacy?

Ex. Rakas (vehicles); Carter (non-overnight guests)

independent source

§ Had they abided by the law, would they have gotten the evidence?
· is the decision to get a warrant free of the "taint"?
· Is the evidence for the warrant obtained legally, free of the "taint"?

§ Police MUST show that they found the evidence in a legal way

Ex. Murray

inevitable discovery

o Preponderance of the evidence
o Police are not required to prove that they actually found the evidence legally
o This is a very large exception

Ex. Nix

attenuation doctrine

· Breaking the causal chain of the fruits of the poisonous tree
· Factors
o Time passing
o Act of free will on the part of the defendant (Ex. Wong Sun)
o Miranda warnings are not sufficient to remove the taint of an illegal arrest from statements made in custody (Ex. Brown)

good faith

· Balancing test
o Does the cost of excluding the deterrable evidence outweigh the deterrent value that would be served by excluding the evidence?

· ALWAYS look to see if the good faith exception applies

Ex. Leon, herring, Hein

Miranda warning violations

o Factors that make it okay for "question first, warn later"
§ Not a formal intense interrogation
§ First setting more informal
§ Bringing up the first statement from the first interrogation will then taint the second one
§ Time
§ How long the first inquiry was
§ One continuous interrogation
§ Two separate interrogations?
§ Good or bad faith on the police
§ Location

o NOTE:
§ If the first statement is coerced unlikely that the second statement with miranda warnings will cure
§ Look for MIRANDA violations and NOT due process violations!!

Ex. Elstad

derived physical evidence

§ So long as the statements were not forced by the police, they are constitutionally admissible

Ex. Patane

impeachment

o Miranda and 6th Amendment statements can be used for impeachment
§ The exclusionary rule was never intended to provide an aggressive sword for defendant to falsify claims or commit perjury
§ Must be for the limited purpose of impeachment!

Ex. Ventris