United States v. Christopher Paul Cusumano, United States of America v. Robert William Porco

KANE, Senior District Judge,

concurring:

I.

I concur in the conclusion of the majority opinion affirming the district court’s denial of the motion to suppress. I agree the warrant was issued on more than ample evidence to support probable cause irrespective of the data and opinions drawn from the unauthorized thermal scan of Defendants’ home. Moreover, I agree use of a thermal imager under these circumstances is a search within the meaning of the Fourth Amendment thus requiring here the issuance of a warrant authorizing use of the thermal imager rather than attempting to use the results of the thermal scan to obtain a warrant.

Current binding authority requires an analysis of privacy interests in order to determine whether an illegal search and seizure occurred. Complying with this mandate, the majority opinion constitutes a skilled application of the doctrines established in Katz v. United States, 389 U.S. 347 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967). I write this concurring opinion because there is a split among the circuits that may provide the opportunity for a fundamental reconsideration of the exclusionary rule itself.

II. The Exclusionary Rule

The exclusionary rule was judicially created and cannot be found in the text of the Constitution. The rule seriously compromises the truth-finding role of the courts by omitting facts in an effort to preserve and protect constitutional rights. Controversy has enshrouded the rule since its inception because of its ambiguous premises and intended purposes.

The astounding number of exceptions to the rule provokes questions about the value of its existence and the efficacy of its applications. Moreover, I join others in asserting alternatives to the exclusionary rule would better serve to enforce the Constitution whilst enhancing the courts’ role in determining guilt or innocence. *1511 Indeed, the numerous exceptions to the rule carved out by the Court from 1961 to the present have excised its ability to serve its purpose as well. If exclusion of otherwise rehable evidence is meant to vivify the Constitution, none of these exceptions should exist. Moreover, if judicial integrity is still considered even a partial justification for the exclusionary rule, courts should be required to suppress illegally obtained evidence irrespective of whether an objection is raised or in spite of a defendant’s consent to its use at trial. 1

A. Justification for the Rule — Deterrence

The currently favored rationale for applying the exclusionary rule, police deterrence, wistfully assumes officers will follow constitutional guidelines instead of having evidence suppressed and criminals freed due to illegal searches. This justification quickly became the vindication for the exclusionary rule. Just four years after Mapp, the Court determined Mapp’s holding was not fully retroactive because a retrospective application would not serve the rule’s main purpose of policing the police. 2 In 1974, the Court again noted “[t]he purpose of the exclusionary rule is not to redress the injury to the privacy of the search victim ... the rule’s prime purpose is to deter future unlawful police conduct....” 3 Indeed, to my reckoning, no other rationale for the rule is currently offered.

The argument that the exclusionary rule deters police misconduct is made of whole cloth. Indeed, one must assume there is any warp or woof to it at all. In United States v. Leon, 468 U.S. 897, 918 , 104 S.Ct. 3405, 3418 , 82 L.Ed.2d 677 (1984), the Court stressed the lack of empirical data to determine the effectiveness of the deterrence theory. Discussion is limited to supposition.

It is difficult to imagine police are not more aware of constitutional constraints since the rule’s inception even if empirical data does not exist. Most likely, however, it is the education and formal police training concerning the rule and not the rule itself which provide such deterrence as might exist. The rule’s adoption proliferated police training procedures. The presence of proper training, however, as a constituent element of the executive branch of government’s effort to regard the charter of its own existence, need not disappear even if the exclusionary rule does.

Other remedies, such as civil damages, are necessary to offer protection to innocent victims of illegal searches. The only people currently benefiting from the exclusionary rule are those who, at least by a probable cause determination, have done something illegal and have that evidence suppressed from trial. The doctrine thereby transforms the Fourth Amendment from a constitutional safeguard to a tool for miscreants to avoid just conviction.

Practical experience suggests the exclusionary rule is illusory as a deterrent. Officers, both zealous and overzealous, receive credit for the initial arrest and approval from their peers in the station house, not from the results of a trial or court hearing which may take place months or even years after the evidence is seized.

The exclusionary rule operates only in the small fraction of police work which results in prosecution. It is understandable that an officer would be more concerned with crime prevention, “visible enforcement” or other goals such as recovering stolen property or removing narcotics from circulation than the rules involving evidence at trial.

The fluctuating and exception-laden search and seizure law does not deter police officers from engaging in illegal searches; it confuses them. There simply are no practical working standards for officers compelled to make immediate decisions under exceedingly stressful conditions. Does any jurist seriously believe an officer evaluates privacy interests with the imprecise quiddities articulated by courts when making an arrest or conducting a search of a crime scene?

*1512 Perhaps more to the point, police officers do not face sanctions as a result of conducting an illegal search. Instead of deterring the offending officer, the rule straps prosecutors who were not involved in the violation by weakening the case against the defendant.

Most importantly, the exclusionary rule has harmful effects on society: Guilty defendants are freed, the truth finding process is distorted, aberrant results subject the courts to public scorn and ridicule, the focus of trial shifts from guilt or innocence to procedural niceties, court costs increase through delay and perjury becomes tempting to the very people supposed to be exemplars of law and order.

B. Exceptions

1. The expectation of privacy

Exceptions were found almost as soon as the exclusionary rule was adopted in Weeks. A mere five years later the Court implemented a “but-for” test ruling any evidence which would not have been discovered but-for the constitutional violation was inadmissible. Silverthome Lumber Co., v. United States, 251 U.S. 385 , 40 S.Ct. 182 , 64 L.Ed. 319 (1919). 4 A persistent pattern to narrow the exclusionary rule’s scope through exceptions has emerged. These exceptions, confusing, if indeed not utterly mystifying to officers in the crucible of action, likewise raise questions about the need for and logic of the rule’s existence.

The Court has clipped the exclusionary rule by limiting the threshold standing requirement. A defendant only has standing to challenge the admission of evidence if his own constitutional rights are violated. United States v. Salvucci 448 U.S. 83, 86-87 , 100 S.Ct. 2547, 2550-51 , 65 L.Ed.2d 619 (1980); Rakas v. Illinois, 439 U.S. 128, 134 , 99 S.Ct. 421, 425-26 , 58 L.Ed.2d 387 (1978). The automatic standing test set out in Jones v. United States, 362 U.S. 257 , 80 S.Ct. 725 , 4 L.Ed.2d 697 (1960), was eliminated in Rakas where the Court held a claimant must have a “legitimate expectation of privacy” as a prerequisite for challenging a search and seizure. 439 U.S. at 140, 148-50 , 99 S.Ct. at 428-29, 432-34 .

A two-pronged test created in United States v. Salvucci 448 U.S. 83, 93 , 100 S.Ct. 2547, 2553-54 , 65 L.Ed.2d 619 (1980), determined whether a “legitimate expectation of privacy” existed. In order to satisfy this test, the claimant must establish a possesso-ry interest in the items seized and a legitimate expectation of privacy in the area searched. Thus, another means of restricting the exclusionary rule is at hand. By not finding an expectation of privacy, the standing of the claimant is removed and the judge may avoid suppressing the illegally obtained evidence.

No legitimate expectation of privacy can be found when information is seized from a third party and used against the claimant. United States v. White, 401 U.S. 745, 751-52 , 91 S.Ct. 1122, 1125-26 , 28 L.Ed.2d 453 (1971). In the Court’s eyes, the defendant took a risk by sharing the information with another. A defendant also has no expectation of privacy when a third party’s Fourth Amendment rights are violated in order to obtain evidence against the defendant. United States v. Payner, 447 U.S. 727, 735 , 100 S.Ct. 2439, 2446 , 65 L.Ed.2d 468 (1980). Precisely how these rules enhance the exclusionary rule as a means of deterring violations of the Fourth Amendment or promoting judicial integrity beggars the imagination.

2. The impeachment exception

Even before the defining Mapp decision, the Court in Walder v. United States, 347 U.S. 62 , 74 S.Ct. 354 , 98 L.Ed. 503 (1954), created an impeachment exception to the exclusionary rule. Under Walder , illegally seized evidence may be used to impeach a defendant’s testimony given on direct examination or cross-examination reasonably suggested by the direct examination. Because a defendant's right to testify does not include the right of perjury, the Court reasoned even illegally obtained evidence should be allowed to impeach testimony. Harris v. New York, 401 U.S. 222, 224-26 , 91 S.Ct. 643, 645-46 , 28 L.Ed.2d 1 (1971). Curiously, this exception does not extend to a defendant’s witnesses. See James v. Illinois, 493 U.S. 307, 313 , 110 *1513 S.Ct. 648, 652 , 107 L.Ed.2d 676 (1990). The rationales given are that witnesses should be sufficiently deterred by the prospect of being prosecuted for perjury and to allow the use of illegally obtained evidence against witnesses might chill the defendant’s right to present a defense. Id. at 314-316 .

3.Harmless error

Another exception to the exclusionary rule is the harmless error doctrine enunciated in Fahy v. Conn, 375 U.S. 85 , 84 S.Ct. 229 , 11 L.Ed.2d 171 (1963). 5 There, the Court decided the admission of tainted evidence was harmless if the effect of that evidence was insignificant to the conviction in light of all the legally obtained evidence presented.

4.Good faith

In Leon, 468 U.S. at 922-23 , 104 S.Ct. at 3420-21 , the Court created the good faith exception to the rule by holding that evidence seized by an officer, who obtained a search warrant in good faith, was admissible even if the warrant was later found to lack probable cause. Writing for the Court, Justice White reiterated its previous finding that deterring police from violating the Constitution was the primary purpose for the exclusionary rule.

Once that premise was accepted, the good-faith exception became ineluctable. ‘Where the official action was pursued in complete good-faith ... the deterrence rationale loses much of its force” because the officer already attempted to protect the citizen’s constitutional rights. Id. at 919 , 104 S.Ct. at 3418 -19 (quoting United States v. Peltier, 422 U.S. 531, 539 , 95 S.Ct. 2313, 2318 , 45 L.Ed.2d 374 (1975)). This was especially true where the officer understandably assumed he was following the law by relying on a facially valid warrant.

Justice White’s opinion emphasized the costs of the exclusionary rule in order to justify this expansive exception. Believing exceptions to the rule were inevitable, he stated an “unbending application of the exclusionary sanction ... would impede unacceptably the truth-finding function of judge and jury.” Id. at 907, 104 S.Ct. at 3412 (quoting Payyier, 447 U.S. at 734 , 100 S.Ct. at 2445-46). In addition, “indiscriminate application of the exclusionary rule ... may well ‘generate disrespect for the law and administration of justice.’ ” Id. at 908, 104 S.Ct. at 3412 (quoting Stone, 428 U.S. at 490, 96 S.Ct. at 3050). These concerns, in conjunction with the lack of deterrence applicable in good-faith cases, led the court to hold the “marginal or non-existent benefits” of suppressing evidence obtained through a subsequently invalid warrant did not justify the costs of exclusion. Id. at 922, 104 S.Ct. at 3420 .

5.Contextual exceptions

In addition to the major doctrinal exceptions mentioned, the Court also prohibited the exclusionary rule from various settings. In United States v. Calandra, 414 U.S. 338 , 94 S.Ct. 613 , 38 L.Ed.2d 561 , the Court held the rule was inapplicable in grand jury proceedings because grand jury questions based on illegally obtained evidence “work no new Fourth Amendment wrong.” Id. at 354 , 94 S.Ct. at 623 . In addition, the Court held the rule could not be used in federal civil cases, United States v. Janis, 428 U.S. 433 , 96 S.Ct. 3021 , 49 L.Ed.2d 1046 (1976), or deportation proceedings. Immigration and Naturalization Services v. Lopez-Mendoza, 468 U.S. 1032 , 104 S.Ct. 3479 , 82 L.Ed.2d 778 (1982). The Court also proscribed federal review of state court exclusionary rule determinations by refusing to grant federal habeas corpus relief where the state was found to have provided a “full and fair” opportunity to litigate the constitutionally based objection. Stone, 428 U.S. at 494 , 96 S.Ct. at 3052 . Finally, the exigency exception allows police to search private residences without a warrant during emergencies. Johnson v. United States, 333 U.S. 10, 14-15 , 68 S.Ct. 367, 369-70 , 92 L.Ed. 436 (1948).

Attenuation, while not specifically connected to the Fourth Amendment, is a related exclusionary principle involving sanctions for violations of constitutional protections. The doctrine concerns direct or derivative evidence obtained from an earlier constitutional violation. This secondary evidence is often referred to as the “fruit of the poisonous *1514 tree.” Thus, where police illegally conduct a search without a warrant, the evidence obtained is tainted. The tainted evidence may provide probable cause warranting a second search, but any evidence found from the second search is excludable because it is considered the “fruit of the poisonous tree.” Nardone v. United States, 308 U.S. 338, 341 , 60 S.Ct. 266, 268 , 84 L.Ed. 307 (1939).

Again, the Court quickly developed exceptions to the compass of exclusion under the “poisonous tree” doctrine so as to remove the original taint and thus make the consequent evidence admissible at trial. “A court may admit evidence that would not have been discovered but for official misconduct if the causal connection between the illegal conduct and the acquisition of the evidence is so attenuated that the evidence is ‘purge[d of] the primary taint.’ ” 6

III. Conclusion

The exclusionary rule began with myriad purposes which were then whittled down to one remaining justification, the efficacy of which is entirely speculative. More to the point, the numerous exceptions to the rule negate whatever effect it might have in the best of circumstances. The rule remains in Fourth Amendment law as a vestige of the fundamental desire to enforce individual constitutional rights and reign in excessive governmental intrusion into those rights.

As Chief Justice Burger wrote in his Bivens dissent, “I do not propose, however, that we abandon the suppression doctrine until some meaningful alternative can be developed ... the public interest would be poorly served if law enforcement officials were suddenly to gain the impression ... that all constitutional restraints ... had somehow been removed.” Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 420-21 , 91 S.Ct. 1999, 2017 , 29 L.Ed.2d 619 (1971). Bivens itself developed at least one alternative to the exclusionary rule. Since then numerous others have been articulated which would serve to create a more effective and just means of protecting constitutional rights. My criticism of the exclusionary rule is based on its failure to achieve an essential and laudable goal and not a disagreement with the goal itself.

Civil sanctions will only be effective if they have a direct impact on the law enforcement officials who might conduct illegal searches and seizures. Although the Bivens decision held that Fourth Amendment violations committed by a federal officer in his official capacity give rise to a tort action for damages, it did not address the issue of qualified immunity. If the federal officer’s search is considered a discretionary function which is not clearly unconstitutional, the tort action will be dismissed under the qualified immunity doctrine. Moreover, the practice of government or police union indemnification of such officers removes the burden of direct impact so that tort liability is not an effective restraint.

The fact that independent disciplinary review boards are consistently opposed by police organizations suggests their use should be more seriously considered. Such a board could have broad powers to suspend or dismiss offending officers and require further training and education to prevent future violations. More than one study suggests that a two-week suspension without pay would be a more efficacious deterrent than application of the exclusionary rule. So, too, as Congress has legislated schemes that license stevedores, interstate truck drivers and airplane pilots, it could establish an effective licensing system for those charged with law enforcement responsibilities.

The balancing approach used by the Court in Alderman v. United States, 394 U.S. 165 , 89 S.Ct. 961 , 22 L.Ed.2d 176 (1969), could be extended to a case-by-case method that would sever Fourth Amendment rights from remedies, allowing the court to determine the wisdom of suppressing evidence according to each situation. Quite clearly, the seriousness of the alleged crime and the degree of harm visited upon victims should be evaluated as constituent considerations. While judges must decide whether suppression is appropriate, a rule of reason subject to an abuse of *1515 discretion review standard should apply instead of the present rule which excludes the exercise of it.

The questionable deterrent effect and the increasing number of exceptions to it transform the exclusionary rule into a doctrine without substance. It may be that the Emperor is not entirely naked, but it is indeed time to observe just what he is wearing.

.Stone V. Powell, 428 U.S. 465, 485 , 96 S.Ct. 3037, 3048 , 49 L.Ed.2d 1067 (1976) (observing the “imperative of judicial integrity” justification for the rule plays a limited role in its application).

. Linkletterv. Walker, 381 U.S. 618, 635-38 , 85 S.Ct. 1731 , 1741—42, 14 L.Ed.2d 601 (1965).

. United States v. Calandra, 414 U.S. 338, 347 , 94 S.Ct. 613, 619 , 38 L.Ed.2d 561 (1974).

. This test was eventually overruled in Wong Sun v. United States, 371 U.S. 471 , 83 S.Ct. 407 , 9 L.Ed.2d 441 (1963), which held the but-for test was too restrictive.

. See also Chambers v. Maroney, 399 U.S. 42, 53 , 90 S.Ct. 1975, 1982 , 26 L.Ed.2d 419 (1970).

. Deborah Connor, The Exclusionary Rule, 23rd Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeal, 1992-93 82 Geo.L.J. 755, 760 (1994) (quoting Wong Sun, 371 U.S. at 488 , 83 S.Ct. at 418 ).