New Cert Petition
Today we filed the attached petition (and appendix) presenting the following question:
When police conduct an illegal search and use the fruits of the search to secure a warrant, does the “good faith exception” to the exclusionary rule apply to the fruits of the second search?
The petition was done by lawyers and summer associates at Akin, as well as by the lawyers at Howe & Russell.
Interesting case. I hope the Court takes it. And affirms.
Comment by Kent Scheidegger — July 28, 2006 @ 5:41 pm
Some questions: (1) did the surveillance give independent reasons to suspect the defendants were growing marijuana? That could attenuate the taint, so to speak.
(2) Is everyone sure that the initial search is bad? I think it a bit unfair that so much emphasis is placed on the “hunch” nature of the suspicions. Since people don’t burgle their own homes and people presumably want the police to check things out when something seems amiss, it seems that the standard for when a cop can enter a home (particularly one that the police officer thought abandoned–which certainly appears to be the case here) when he thinks or suspects a burglary or other illegal activity unlikely to be that of the owner should be lesser than when his actions are directed to the owner. In other words, if a cop sees my door wide open in the middle of the night, I would hope that he would check things out. Of course, that is not this case, but keep in mind, the cop easily could have thought the house to be abandoned (thus making the activity therein suspicious and unlikely to be that of the owner–thus not triggering 4th Amendment concerns). (Corollary question: is an abandoned home a “Castle” for purposes of the 4th Amendment? And what about the officer’s belief as to the status of the home?)
The Sixth Circuit’s decision states that the cops entry if they think a burglary is taking place can only happen upon probable cause. To a certain extent, that makes sense, we don’t want cops willy-nilly going into people’s houses, but it feels wrong. Certainly, we want police to exercise the “caretaker function”, and do we really want probable cause to be the standard? Cops instinctively know when something is awry, and where that instinct is directed at protecting the owner of property, it seems the standard should be different, no?
Thus, if the cops were on solid ground to enter the home (another corollary–are they liable for violation of the owner’s rights on these facts?), why should they stop at a halfway search of the house? Certainly, the bad guys could be hiding in the basement.
Obviously, the government may not have preserved all these questions–but tossing around the word, “egregious”, seems a little over the top.
Comment by federalist — July 28, 2006 @ 8:16 pm
This so-called “caretaker function” is really pernicious. The idea that a law enforcement officer is doing something for my own good, and therefore is to be excused from probable cause requirements, regardless of whether I want it done or not, is the opposite of liberty. If police officers could be good samaritans, it would be one thing; but they are not, their function is to enforce the law and their only tool is the criminal law. Even in their most innocent encounters, such as a request for directions, they may decide that something is amiss, and proceed through the ritual of Terry stop, protective search, probe for admissions, coerce consent to search or obtain it by ruse, sniff by a drug dog, inventory search, etc. To add a category of cases where police can act on their own desire to impose order, without probable cause or consent, endangers liberty.
Comment by r.friedman — July 30, 2006 @ 9:17 am
R.friedman–what’s your solution? Do we want cops not to look out for citizens? If my door’s wide open in the middle of the night–I want cops to check things out. Most people do. Admittedly, this is a close case, but can we really condemn the cops here?
Comment by federalist — July 30, 2006 @ 3:32 pm
Mr. Scheidegger, affirming would greatly undermine the protection of the exclusionary rule. Weeks establishes that people are not “secure… against unreasonable searches and seizures” if evidence and the fruits of evidence of an illegal search or seizure could be used against the defendant, for the police are then not substantially deterred from executing the search or seizure. Similarly, no deterrence exists if the police know that the search can be useful down the road to secure a second warrant from a sympathetic district judge (who is not presented with defense counsel opposing the warrant on grounds that the evidence establishing probable cause is “poisoned”), permitting a search that secures evidence to be used against the defendant in the presence of a good faith exception. The police may as well conduct the initial search in the hope that *some* good use of the evidence will come about. I therefore hope for a reversal.
Comment by Jacob — July 31, 2006 @ 7:42 pm
Jacob–how much do we want to hamstring the caretaker function? Are we sure here that the exclusionary rule is a good idea from a policy standpoint in this case? Remember, it is exceedingly unlikely that the cops were focused on catching the owner of the house engaged in criminal activity, but rather thought they might be catching a third party which would have zero 4th Amendment rights in this case.
Comment by federalist — July 31, 2006 @ 8:21 pm