Opinion

United States v. Gerald Duane Vandemark

  • 522 F.2d 1019
  • 1975 U.S. App. LEXIS 13769
Court
Court of Appeals for the Ninth Circuit
Filed
Jul 10, 1975
Status
Published
Author
Koelsch
On the bench
Koelsch, Wallace, Jameson
Cited by
65 cases

Limited — as noted by a later court

limiting holding of Verdugo to cases in which use at sentencing of illegally seized evidence "would provide a substantial incentive for unconstitutional searches and seizures "

How later courts described this case

  • limiting holding of Verdugo to cases in which use at sentencing of illegally seized evidence "would provide a substantial incentive for unconstitutional searches and seizures "
  • limiting Verdugo to cases where refusing to apply the exclusionary rule "would provide a substantial incentive for unconstitutional searches and seizures"
  • “[Jjustice is better served by not extending the exclusionary rule to either probation revocation or subsequent sentencing where the searching officers are unaware of the probationer’s status [i. e., unawareness indicates lack of incentive for unconstitutional search].”
  • declining to extend the exclusionary rule to sentencing after revocation of probation

Written by the judges who cited it.

Later courts went against this

  • Limited — as noted by a later court

    But Verdugo has been narrowly construed and limited to its facts in the later case of United States v. Vandemark, supra, 522 F.2d at 1023, where the court characterized the circumstances in Verdugo as extraordinary and concluded that to have allowed the use of the suppressed evidence would have provided a "substantial incentive" for unconstitutional searches.
    medium confidence

The opinion

KOELSCH, Circuit Judge

(concurring):

I concur, albeit reluctantly. Absent this court’s recent decision in Winsett, I would opt for a flat rule outlawing such use of illegally secured evidence. The wisdom of my choice is demonstrated, I suggest, by the considerable emphasis that the main opinion is compelled to place upon the fact that here the unlawful invasion was considerably less intrusive than the “blatantly” illegal search revealed in Verdugo.

Courts ought to be afforded clear guideposts whenever reasonably possible and should not be required to nicely calculate the degree of the misconduct and perhaps the motivation of the government’s lawless officers.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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