The 7th Circuit Court of Appeals Just Weakened the Fourth Amendment

clapee said:

What is factually incorrect? You just restated my point. I am aware that the two-prong test was interpreted to mean anonymous tips could not be used to establish probable cause. If it cannot be used to establish probable cause, then it doesn’t have much merit to an investigation. But, what Gates held is that it could be used for probable cause if there were corroborative facts. Which makes a whole lot of sense.

There has to be a reason to challenge a warrant. Once cannot just file a motion saying a warrant is inadequate. A search warrant is the hardest thing to challenge as a defense attorney.

This all might sound strange to you, but I actually practice law. You’re looking at it through a theoretical approach, which might make sense to you, but it makes little sense in the actual practice.

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You can practice all you want, but the basic fact of the matter is that probable cause is challenged all the time. It may be hard to win those challenges under the best of circumstances... but I submit it becomes doubly so when the accused loses not only his 4th Amendment protections against illegal search & seizure, but also his 6th Amendment right of confrontation of the witnesses against him.

Cordelier said:

You can practice all you want, but the basic fact of the matter is that probable cause is challenged all the time. It may be hard to win those challenges under the best of circumstances... but I submit it becomes doubly so when the accused loses not only his 4th Amendment protections against illegal search & seizure, but also his 6th Amendment right of confrontation of the witnesses against him.

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Probable cause is challenged all the time, but not necessarily search warrants. A search warrant is presumed to be valid because it has already been reviewed by a judicial officer. The challenge is much different, than say a motion to suppress based on a faulty traffic stop, or challenging a warrantless search.

And, you only have the right to confront witnesses called by the prosecution. If the informant is not called as a witness, you have no right to confront said witness.

Cordelier said:

That's only the case, though, if the illegally obtained evidence doesn't affect the Magistrate's decision to issue the warrant (see Murray, 542). Once the warrant application was presented and cited the illegally obtained evidence as probable cause, then the Magistrate's decision to issue the warrant ceases to become an independent source - it has been tainted by the fruit of the poisonous tree.

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Your premise is just flat wrong. Judges remove the tainted evidence and consider whether or not there remains probable cause after the tainted evidence is removed. No case stands for the proposition that a whole warrant is invalidated if a piece if some of the evidence cited in the warrant application is improper in some way.

Maybe you disagree with that, but that doesn’t change the reality with which warrants are dealt by the courts.

clapee said:

Probable cause is challenged all the time, but not necessarily search warrants. A search warrant is presumed to be valid because it has already been reviewed by a judicial officer. The challenge is much different, than say a motion to suppress based on a faulty traffic stop, or challenging a warrantless search.

And, you only have the right to confront witnesses called by the prosecution. If the informant is not called as a witness, you have no right to confront said witness.

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I disagree... search warrants can be challenged during suppression hearings for numerous reasons, including:

1) The sufficiency of evidence presented to the magistrate to constitute probable cause. (See Spinelli v. US, 393 US 410 (1969); US v. Harris, 403 US 573 (1971))
2) The veracity of the statements used by the police to procure the warrant. (See Franks v. Delaware, 438 US 154 (1978))
3) Any questions regarding the power of the official issuing the warrant. (See Coolidge v. New Hampshire, 403 US 443, 449-53 (1971)).
4) The specificity of the particularity required. (See Marron v. US, 275 US 192 (1927)).

Secondly, your assertion that an individual's 6th Amendment right to confrontation exists only on cross-examination during a trial doesn't gibe with the Court's decision in Coleman v. Alabama, 399 US 1 (1970) which guaranteed the 6th Amendment right to counsel in all pretrial hearings. As the wording of the 6th Amendment draws no distinction between the various rights conferred, then doesn't it follow that the right to confrontation also similarly exists for pretrial suppression hearings?

clapee said:

Your premise is just flat wrong. Judges remove the tainted evidence and consider whether or not there remains probable cause after the tainted evidence is removed. No case stands for the proposition that a whole warrant is invalidated if a piece if some of the evidence cited in the warrant application is improper in some way.

Maybe you disagree with that, but that doesn’t change the reality with which warrants are dealt by the courts.

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I invite you to cite the relevant portion of Justice Scalia's opinion in Murphy which supports this contention.

clapee said:

Your premise is just flat wrong. Judges remove the tainted evidence and consider whether or not there remains probable cause after the tainted evidence is removed. No case stands for the proposition that a whole warrant is invalidated if a piece if some of the evidence cited in the warrant application is improper in some way.

Maybe you disagree with that, but that doesn’t change the reality with which warrants are dealt by the courts.

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Cordelier said:

I invite you to cite the relevant portion of Justice Scalia's opinion in Murphy which supports this contention.

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Opps... my bad - obviously I was referring to Justice Scalia's opinion in Murray, and not Murphy. *L* My apologies... textbook case of Murphy's Law there.

Cordelier said:

I'll cite you this quotation from Justice Scalia's opinion in Murray v. US, 487 US 533,542 (1988):

"The ultimate question, therefore, is whether the search pursuant to warrant was, in fact, a genuinely independent source of the information and tangible evidence at issue here. This would not have been the case if the agents' decision to seek the warrant was prompted by what they had seen during the initial entry, or if information obtained during that entry was presented to the Magistrate and affected his decision to issue the warrant."

In the Murray case, the police illegally entered the warehouse, found the marijuana, and then applied for a warrant, but the deciding factor was that the police did not mention their illegal entry or the discovery of the marijuana when they presented their probable cause to the Judge, and so there was a valid argument that the issuance warrant wasn't tainted by the illegally discovered evidence and was therefore an independent source. This obviously wasn't the case in Huskisson. If the police hadn't included the discovery of the drugs within their ex post facto warrant application, then I'd agree with you that it meets the Murray test... but because they did, then Murray cannot present a valid case for exemption under the exclusion rule.

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There are two parts to the Murray test. The 7th Circuit explicitly referenced both tests. The first test involves the independent source doctrine, applicable in Huskisson because the search warrant included unlawful conduct by law enforcement. The second test IS what the late great Justice Scalia focuses upon, which is to ask whether the reason/motivation to seek a search warrant was based on what was seen during an unlawful entry/search. This second factor can be characterized as an extension of the independent source doctrine in the first factor.

So, there are two factors. If the search warrant contains unlawful conduct to establish PC, the question is to ask whether
there is PC without the unlawful conduct. If the answer is yes, then the text of the warrant can be said to establish PC without the taint. The first factor involves the content of the warrant. The second factor doesn’t focus upon content of the warrant but the motives and reasons by officers to seek a warrant. The second test ensures the decision to obtain that warrant is free from what was seen during the unlawful entry, meaning the decision to seek a warrant wasn’t because of or based on what was viewed during the unlawful entry.

The 7th Circuit focuses upon both in its decision. The factor discussed by Scalia was the second factor analyzed by the 7th Circuit in Huskisson. Specifically, the factor discussed by Scalia above was the factor used by the 7th Circuit to analyze DEA agent’s ostensibly contradictory testimony.

The independent source doctrine in regards to the first test isn’t analyzed by Justice Scalia EXACTLY BECAUSE the search warrant didn’t include or seek to rely upon unlawful police conduct to establish PC. There’s no need to invoke the independence source doctrine when analyzing a search warrant under the first test unless the warrant included unlawful police conduct to establish PC. Scalia is focusing upon the second test in his opinion

Scalia’s opinion is not inconsistent and neither contradicts with what I have said or the tests used by the 7th Circuit in Huskisson. Scalia does not say the independent source doctrine is inapplicable to a search warrant containing unlawful conduct to establish PC. Scalia’s opinion focuses upon, not the text of the warrant, but the officers’ reasons, motivations to seek a warrant.




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NotreDame said:

There are two parts to the Murray test. The 7th Circuit explicitly referenced both tests. The first test involves the independent source doctrine, applicable in Huskisson because the search warrant included unlawful conduct by law enforcement. The second test IS what the late great Justice Scalia focuses upon, which is to ask whether the reason/motivation to seek a search warrant was based on what was seen during an unlawful entry/search. This second factor can be characterized as an extension of the independent source doctrine in the first factor.

(Edited for length)

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Except that's not what Justice Scalia said in the opinion, though... here is the relevant provision again... this time with my emphasis:

"The ultimate question, therefore, is whether the search pursuant to warrant was, in fact, a genuinely independent source of the information and tangible evidence at issue here. This would not have been the case if the agents' decision to seek the warrant was prompted by what they had seen during the initial entry, or if information obtained during that entry was presented to the Magistrate and affected his decision to issue the warrant."

First, there is the strand of Detective Kinney's contradictory testimony that the decision to seek the warrant was prompted by what they had seen during the initial entry. But even if you take that as a simple mis-statement, there is the second part - the information obtained during the entry was present to the Magistrate. How are we to assess whether that information affected his decision to issue the warrant? Well, for guidance on that, I'll refer to Chief Justice Burger's opinion in Segura v. US, 468 US 796, 814-15 (1984) (Note my added emphasis on the word "wholly" - it doesn't leave much room for ambiguity):

"None of the information on which the warrant was secured was derived from or related in any way to the initial entry into petitioners' apartment; the information came from sources wholly unconnected with the entry, and was known to the agents well before the initial entry. No information obtained during the initial entry or occupation of the apartment was needed or used by the agents to secure the warrant. It is therefore beyond dispute that the information possessed by the agents before they entered the apartment constituted an independent source for the discovery and seizure of the evidence now challenged. This evidence was discovered the day following the entry, during the search conducted under a valid warrant; it was the product of that search, wholly unrelated to the prior entry. The valid warrant search was a "means sufficiently distinguishable" to purge the evidence of any "taint" arising from the entry. Wong Sun, 371 U.S. at 371 U. S. 488. Had police never entered the apartment, but instead conducted a perimeter stakeout to prevent anyone from entering the apartment and destroying evidence, the contraband now challenged would have been discovered and seized precisely as it was here. The legality of the initial entry is, thus, wholly irrelevant under Wong Sun, supra, and Silverthorne Lumber Co. v. United States, 251 U. S. 385 (1920)."

It seems pretty clear to me that for the independent source doctrine to apply here, the caselaw is clear - the probable cause underlying the warrant must be "wholly unrelated" to the illegal entry. Once the illegally obtained evidence was cited in making the application, then the Magistrate's issuance of the warrant itself became tainted by the fruit from the poisonous tree doctrine. There's no room for ambiguity here - "wholly unrelated" is a pretty black-and-white standard, wouldn't you agree?

Cordelier said:

I disagree... search warrants can be challenged during suppression hearings for numerous reasons, including:

1) The sufficiency of evidence presented to the magistrate to constitute probable cause. (See Spinelli v. US, 393 US 410 (1969); US v. Harris, 403 US 573 (1971))
2) The veracity of the statements used by the police to procure the warrant. (See Franks v. Delaware, 438 US 154 (1978))
3) Any questions regarding the power of the official issuing the warrant. (See Coolidge v. New Hampshire, 403 US 443, 449-53 (1971)).
4) The specificity of the particularity required. (See Marron v. US, 275 US 192 (1927)).

Secondly, your assertion that an individual's 6th Amendment right to confrontation exists only on cross-examination during a trial doesn't gibe with the Court's decision in Coleman v. Alabama, 399 US 1 (1970) which guaranteed the 6th Amendment right to counsel in all pretrial hearings. As the wording of the 6th Amendment draws no distinction between the various rights conferred, then doesn't it follow that the right to confrontation also similarly exists for pretrial suppression hearings?

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I already cited Franks to you. Franks provides that if a fact contained in a warrant is a flat out lie by a police officer, that fact is excised from the warrant application, and the remainder is examined for probable cause. A similar method is employed for tainted evidence in a warrant. There is not a single case that proposes an entire warrant is invalidated if one fact is improper in some way. Instead the balance of the warrant app. is examined.

Other than that, there are facial challenges to a warrant. For example, law enforcement must describe particularly where and what house is to be searched or what items are the object of the search. If a long barrel rifle is the object of a search, then obviously looking in a nightstand drawer that couldn’t possibly fit a rifle would exceed the scope of the warrant. That is different than the sufficiency of the probable cause underpinning the warrant, which is rarely going to get you anywhere. That is just a stupid challenge and would have to be egregious to win.

The other case you cite, Spinelli, is out of the window. None of those cases refutes the contention that a warrant is presumed valid. I’ll find you a case citation for that proposition when i have the time and inclination.

I said the right to confrontation, not the right to be represented by counsel. Those are two distinct things. Is there a right to confrontation ration at a grand jury? Is there a right of confrontation at a preliminary hearing? Is there a right of confrontation at a bond hearing? The answer is no. However, someone does have the right to counsel during these proceedings.

Again, you cannot conflate different theories into one overarching theory. Simply because you disagree does not make it so.

Cordelier said:

Except that's not what Justice Scalia said in the opinion, though...

"None of the information on which the warrant was secured was derived from or related in any way to the initial entry into petitioners' apartment; the information came from sources wholly unconnected with the entry, and was known to the agents well before the initial entry. No information obtained during the initial entry or occupation of the apartment was needed or used by the agents to secure the warrant. It is therefore beyond dispute that the information possessed by the agents before they entered the apartment constituted an independent source for the discovery and seizure of the evidence now challenged. This evidence was discovered the day following the entry, during the search conducted under a valid warrant; it was the product of that search, wholly unrelated to the prior entry. The valid warrant search was a "means sufficiently distinguishable" to purge the evidence of any "taint" arising from the entry. Wong Sun, 371 U.S. at 371 U. S. 488. Had police never entered the apartment, but instead conducted a perimeter stakeout to prevent anyone from entering the apartment and destroying evidence, the contraband now challenged would have been discovered and seized precisely as it was here. The legality of the initial entry is, thus, wholly irrelevant under Wong Sun, supra, and Silverthorne Lumber Co. v. United States, 251 U. S. 385 (1920)."

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No, Scalia’s remark formulated the two part test.

”This would not have been the case if the agents' decision to seek the warrant was prompted by what they had seen during the initial entry, or if information obtained during that entry was presented to the Magistrate and affected his decision to issue the warrant."

Okay, so it’s 1.) Was the agent’s decision to seek a warrant based on what that they observed during entry and 2.) if the information obtained during entry was presented to a magistrate in the warrant, did that information affect the magistrate’s decision to issue the warrant. That is the two part independent source test.

The above doesn’t repudiate the approach of asking whether there is PC without the unlawful taint in the warrant. There was No Need for Scalia to ask or analyze whether the information obtained during entry was presented to a magistrate in the warrant because in the case before him the warrant did not rely upon any information from the entry. J. Scalia is entirely addressing the first half of the formulated two part test in his decision.

The 7th Circuit in Huskisson applied both one and two. In addressing factor 1, they asked did PC exist without the taint in the warrant because if so, then the judge would have signed the warrant based on the information free from the taint since that information established PC. There’s nothing in Scalia’s opinion repudiating this approach.

It seems pretty clear to me that for the independent source doctrine to apply here, the caselaw is clear - the probable cause underlying the warrant must be "wholly unrelated" to the illegal entry.

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Except, no! Burger was not at all addressing, commenting, or deciding the same or similar facts confronting the 7th Circuit. Since he was deciding a different set of facts, his holding in that case, in finding the independent source doctrine applicable to those facts in the case before him, he did not pass judgment on its applicability to the facts before the 7th Circuit in Huskisson. Neither does any of Burger’s decision render the independent source doctrine inapplicable to those facts that confronted the 7th Circuit in Huskisson. At no time does Scalia or Burger decide the independent source doctrine is inapplicable to a factual scenario involving a search warrant containing information from an unlawful entry.

seems pretty clear to me that for the independent source doctrine to apply here, the caselaw is clear - the probable cause underlying the warrant must be "wholly unrelated" to the illegal entry.

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Burger never said “wholly unconnected” or “wholly unrelated” was a necessary condition for the independent source doctrine to apply. In other words, Burger did not decide it was a MUST that “wholly unconnected/unrelated” had to exist before the independent source doctrine could apply. Rather, he said since “wholly unconnected/unrelated” was present in the facts before the Court, that was sufficient for the independent source doctrine to apply.

There's no room for ambiguity here - "wholly unrelated" is a pretty black-and-white standard, wouldn't you agree?

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The ambiguity or lack thereof isn’t the issue. It’s your treatment of it as a necessary condition for the independent source doctrine to apply that’s problematic, since Burger didn’t treat it as a necessary condition at all.


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clapee said:

I already cited Franks to you. Franks provides that if a fact contained in a warrant is a flat out lie by a police officer, that fact is excised from the warrant application, and the remainder is examined for probable cause. A similar method is employed for tainted evidence in a warrant. There is not a single case that proposes an entire warrant is invalidated if one fact is improper in some way. Instead the balance of the warrant app. is examined.

Other than that, there are facial challenges to a warrant. For example, law enforcement must describe particularly where and what house is to be searched or what items are the object of the search. If a long barrel rifle is the object of a search, then obviously looking in a nightstand drawer that couldn’t possibly fit a rifle would exceed the scope of the warrant. That is different than the sufficiency of the probable cause underpinning the warrant, which is rarely going to get you anywhere. That is just a stupid challenge and would have to be egregious to win.

The other case you cite, Spinelli, is out of the window. None of those cases refutes the contention that a warrant is presumed valid. I’ll find you a case citation for that proposition when i have the time and inclination.

I said the right to confrontation, not the right to be represented by counsel. Those are two distinct things. Is there a right to confrontation ration at a grand jury? Is there a right of confrontation at a preliminary hearing? Is there a right of confrontation at a bond hearing? The answer is no. However, someone does have the right to counsel during these proceedings.

Again, you cannot conflate different theories into one overarching theory. Simply because you disagree does not make it so.

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Let's not forget that we're conducting two separate discussions here - #1 being the discussion of the case at hand (US v. Huskisson) and #2 being my assertion that the usurping of the two-prong test in favor of the totality of evidence in the Gates case constituted conservative judicial activism. You cited the Franks case to me in the context of discussion #1, but the confrontation issue in which I cited Franks in the above quote is in relation to discussion #2. Obviously there isn't a 6th Amendment confrontation issue in the Huskisson case as there was no anonymous tip in the matter. The identity and credibility of the informant isn't in question here. Let's not get our wires crossed here.

In that spirit, since the post you quoted from deals exclusively with discussion #2 and the preservation of the 6th Amendment right of confrontation in pretrial hearings, anything I say in this responding post should be construed as applying purely to that discussion and has no bearing whatsoever on the Huskisson matter.

From my perspective, when an anonymous tip is used to establish totality of evidence for probable cause in obtaining a warrant, the primary reason that warrant would be challenged in a suppression hearing would to challenge sufficiency of evidence. Without recourse to challenge the credibility and reliability of an anonymous informant, then how is a defendant supposed to be able to challenge sufficiency of evidence for probable cause? This is a fundamental right guaranteed by the 6th Amendment - that the accused be able to face his accusers in all criminal prosecutions. What's more, this right exists in parallel with other fundamental rights contained within the wording of the 6th Amendment - such as the right to counsel. Nowhere in the amendment are these rights held to be exclusively in a trial setting... indeed, Coleman v. Alabama specifically states that defendants have a right to counsel in all judicial proceedings - including pretrial hearings. So if you concede that the right to counsel exists for a suppression hearing, why then do you maintain that the right of confrontation doesn't similarly exist? Does not the 6th Amendment give both rights equal footing?

I'm interested as to why you feel the right to counsel exists at all times while the right to confrontation does not. There's certainly nothing within the wording of the 6th Amendment that implies such a distinction exists, is there?

NotreDame said:

No, Scalia’s remark formulated the two part test.

”This would not have been the case if the agents' decision to seek the warrant was prompted by what they had seen during the initial entry, or if information obtained during that entry was presented to the Magistrate and affected his decision to issue the warrant."

Okay, so it’s 1.) Was the agent’s decision to seek a warrant based on what that they observed during entry and 2.) if the information obtained during entry was presented to a magistrate in the warrant, did that information affect the magistrate’s decision to issue the warrant. That is the two part independent source test.

The above doesn’t repudiate the approach of asking whether there is PC without the unlawful taint in the warrant. There was No Need for Scalia to ask or analyze whether the information obtained during entry was presented to a magistrate in the warrant because in the case before him the warrant did not rely upon any information from the entry. J. Scalia is entirely addressing the first half of the formulated two part test in his decision.

The 7th Circuit in Huskisson applied both one and two. In addressing factor 1, they asked did PC exist without the taint in the warrant because if so, then the judge would have signed the warrant based on the information free from the taint since that information established PC. There’s nothing in Scalia’s opinion repudiating this approach.



Except, no! Burger was not at all addressing, commenting, or deciding the same or similar facts confronting the 7th Circuit. Since he was deciding a different set of facts, his holding in that case, in finding the independent source doctrine applicable to those facts in the case before him, he did not pass judgment on its applicability to the facts before the 7th Circuit in Huskisson. Neither does any of Burger’s decision render the independent source doctrine inapplicable to those facts that confronted the 7th Circuit in Huskisson. At no time does Scalia or Burger decide the independent source doctrine is inapplicable to a factual scenario involving a search warrant containing information from an unlawful entry.



Burger never said “wholly unconnected” or “wholly unrelated” was a necessary condition for the independent source doctrine to apply. In other words, Burger did not decide it was a MUST that “wholly unconnected/unrelated” had to exist before the independent source doctrine could apply. Rather, he said since “wholly unconnected/unrelated” was present in the facts before the Court, that was sufficient for the independent source doctrine to apply.



The ambiguity or lack thereof isn’t the issue. It’s your treatment of it as a necessary condition for the independent source doctrine to apply that’s problematic, since Burger didn’t treat it as a necessary condition at all.


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Interesting... Scalia's opinion in Murray seems to put great weight on the fact that the illegally obtained evidence wasn't cited by the police in their warrant application and so the warrant itself was untainted and was thus an independent source of probable cause. It doesn't seem to be an incidental consideration, as you seem to make it out to be. This is an echo of the absolutist language used by Burger in Segura. This is to be expected, as the countervailing argument - the fruit of the poisonous tree doctrine - uses similar absolutist language. That being said, I'm inclined to reject the independent source doctrine in this case - I'd expand on that further, as your post deserves a full and fair response... but you've got me thinking of another potential line of argument.

Instead of applying the independent source doctrine in this case... do you think the attenuation doctrine would be more appropriate? It seems to me this is where your line of reasoning is going... let me know what you think - I'm going to study it a bit further tonight.

Cordelier said:

Let's not forget that we're conducting two separate discussions here - #1 being the discussion of the case at hand (US v. Huskisson) and #2 being my assertion that the usurping of the two-prong test in favor of the totality of evidence in the Gates case constituted conservative judicial activism. You cited the Franks case to me in the context of discussion #1, but the confrontation issue in which I cited Franks in the above quote is in relation to discussion #2. Obviously there isn't a 6th Amendment confrontation issue in the Huskisson case as there was no anonymous tip in the matter. The identity and credibility of the informant isn't in question here. Let's not get our wires crossed here.

In that spirit, since the post you quoted from deals exclusively with discussion #2 and the preservation of the 6th Amendment right of confrontation in pretrial hearings, anything I say in this responding post should be construed as applying purely to that discussion and has no bearing whatsoever on the Huskisson matter.

From my perspective, when an anonymous tip is used to establish totality of evidence for probable cause in obtaining a warrant, the primary reason that warrant would be challenged in a suppression hearing would to challenge sufficiency of evidence. Without recourse to challenge the credibility and reliability of an anonymous informant, then how is a defendant supposed to be able to challenge sufficiency of evidence for probable cause? This is a fundamental right guaranteed by the 6th Amendment - that the accused be able to face his accusers in all criminal prosecutions. What's more, this right exists in parallel with other fundamental rights contained within the wording of the 6th Amendment - such as the right to counsel. Nowhere in the amendment are these rights held to be exclusively in a trial setting... indeed, Coleman v. Alabama specifically states that defendants have a right to counsel in all judicial proceedings - including pretrial hearings. So if you concede that the right to counsel exists for a suppression hearing, why then do you maintain that the right of confrontation doesn't similarly exist? Does not the 6th Amendment give both rights equal footing?

I'm interested as to why you feel the right to counsel exists at all times while the right to confrontation does not. There's certainly nothing within the wording of the 6th Amendment that implies such a distinction exists, is there?

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There is no confrontation issue in Franks. That isn’t what that case stands for. That case is synonymous with challenging a factual misrepresentation in a search warrant. That has nothing to do with confrontation.

With regard to your question of confrontation and a search warrant: first, there is no confrontation right in the application of a search warrant. The entire process of securing a search warrant is ex parte. Secondly, with regard to after the fact challenges, a judge has already considered the underlying evidence of the search warrant. Judges assume other judges performed their duties correctly. And, during a probable cause determination, there is no right to confrontation. Hearsay is explicitly allowed in such hearings.

I do not “feel” that the right to confrontation exists only in a trial, I know the right to confrontation only exists in a trial setting.Whether or not I agree or disagree, that is how the Supreme Court has interpreted such a right. My personal opinion is the confrontation right ought to be extended, and all felonies ought to be determined by preliminary hearing rather than grand jury. But, that flies in the face of the constitution, though it’s not necessarily prophylactic to the accused.

You are more knowledgeable than the average bear, and many of your opinions are reasonable. But, there are hundreds of cases which have interpreted the bill of rights and hundreds of cases that have interpreted the cases that have interpreted the bill of rights. It gets awfully murky in trying to wade your way through it. Much of criminal procedure is borrowed from the English common law, so a simple phrase in the Constitution invoked a wealth of case law that isn’t apparent to a passerby.

Cordelier said:

Interesting... Scalia's opinion in Murray seems to put great weight on the fact that the illegally obtained evidence wasn't cited by the police in their warrant application and so the warrant itself was untainted and was thus an independent source of probable cause. It doesn't seem to be an incidental consideration, as you seem to make it out to be. This is an echo of the absolutist language used by Burger in Segura. This is to be expected, as the countervailing argument - the fruit of the poisonous tree doctrine - uses similar absolutist language. That being said, I'm inclined to reject the independent source doctrine in this case - I'd expand on that further, as your post deserves a full and fair response... but you've got me thinking of another potential line of argument.

Instead of applying the independent source doctrine in this case... do you think the attenuation doctrine would be more appropriate? It seems to me this is where your line of reasoning is going... let me know what you think - I'm going to study it a bit further tonight.

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Careful. Scalia didn’t just say that the tainted evidence wasn’t presented to the reviewing judge, but that it didn’t affect his or her decision. The Trey is whether probable cause exists when the tainted evidence is excluded. If probable cause existed without the tainted evidence, it couldn’t have, as an objectively factual matter, affected the reviewing judge’s decision.

Attenuation doctrine applies when some intervening circumstance, or some act of free will, disconnects the collection of the evidence with the illegal act, that it cannot be said the illegal act actually secured the evidence. A search warrant secured by the investigating officer is not an intervening circumstance. For example, if a police officer pulls someone over for no reason, but there is an outstanding arrest warrant for that person, and narcotic are found while the arrested is being booked, then the narcotic will not be excluded.

clapee said:

There is no confrontation issue in Franks. That isn’t what that case stands for. That case is synonymous with challenging a factual misrepresentation in a search warrant. That has nothing to do with confrontation.

With regard to your question of confrontation and a search warrant: first, there is no confrontation right in the application of a search warrant. The entire process of securing a search warrant is ex parte. Secondly, with regard to after the fact challenges, a judge has already considered the underlying evidence of the search warrant. Judges assume other judges performed their duties correctly. And, during a probable cause determination, there is no right to confrontation. Hearsay is explicitly allowed in such hearings.

I do not “feel” that the right to confrontation exists only in a trial, I know the right to confrontation only exists in a trial setting.Whether or not I agree or disagree, that is how the Supreme Court has interpreted such a right. My personal opinion is the confrontation right ought to be extended, and all felonies ought to be determined by preliminary hearing rather than grand jury. But, that flies in the face of the constitution, though it’s not necessarily prophylactic to the accused.

You are more knowledgeable than the average bear, and many of your opinions are reasonable. But, there are hundreds of cases which have interpreted the bill of rights and hundreds of cases that have interpreted the cases that have interpreted the bill of rights. It gets awfully murky in trying to wade your way through it. Much of criminal procedure is borrowed from the English common law, so a simple phrase in the Constitution invoked a wealth of case law that isn’t apparent to a passerby.

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I didn't suggest there was a confrontation issue in Franks - I only cited the case for illustrative purposes of various types of challenges that may be put forward to question the validity of search warrants. My focus is on potential sufficiency of evidence challenges to ex parte evidence within the context of suppression hearings. My assertion is that the denial of confrontation in such circumstances presents a potential procedural due process issue for the defendant. As we've seen with the Coleman case, the denial of the right to counsel in such hearings has been ruled unconstitutional... so why then is the denial of confrontation in such challenges not similarly unconstitutional? Both rights spring from the same source within the 6th Amendment - both are held to exist within all criminal prosecutions. Since Coleman states clearly that pretrial hearings are a "critical stage" of such prosecutions, then can't it be argued that when seeking to suppress evidence by challenging the sufficiency of the evidence upon which probable cause was established, that it is essential in the interests of due process that a defendant similarly have the right to confront the witnesses providing it?

This is the essential point I've been trying to make with regards to the constitutional shortcomings of totality of evidence standard in comparison with the two-prong standard of Aguilar-Spinelli, where no similar procedural due process issue is existent.

clapee said:

Careful. Scalia didn’t just say that the tainted evidence wasn’t presented to the reviewing judge, but that it didn’t affect his or her decision. The Trey is whether probable cause exists when the tainted evidence is excluded. If probable cause existed without the tainted evidence, it couldn’t have, as an objectively factual matter, affected the reviewing judge’s decision.

Attenuation doctrine applies when some intervening circumstance, or some act of free will, disconnects the collection of the evidence with the illegal act, that it cannot be said the illegal act actually secured the evidence. A search warrant secured by the investigating officer is not an intervening circumstance. For example, if a police officer pulls someone over for no reason, but there is an outstanding arrest warrant for that person, and narcotic are found while the arrested is being booked, then the narcotic will not be excluded.

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Respectfully, I think you need to more closely examine the wording of Justice Scalia's opinion.... specifically his use of the term "wholly" - he doesn't say that the illegality must be "substantially" unconnected to the evidence - he specifically uses the word "wholly". There's not a whole lot of room for shades of gray when dealing with independent source exceptions because the rule to which the apply - the fruit of the poisonous tree doctrine - is itself very black-and-white. Evidence is either "wholly unconnected" or it is not... everything else is un-wholly.

RandyJa said:

On June 5th, the 7th Circuit Court of Appeals issued a unanimous decision regarding US v. Huskisson, weakening the Fourth Amendment and due process. The original case seems relatively cut and dry with regards to Huskisson’s guilt; he agreed to sell methamphetamine to a confidential informant while DEA agents recorded the call. Huskisson arrived at his home the next day with the informant, carrying a cooler. The informant then gave a signal and multiple DEA agents entered the house, arresting Huskisson, who did not consent to a search of his property.


The 7th Circuit Court of Appeals Just Weakened the Fourth Amendment - Porter Medium

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Those darn pesky rights get in the way of a tyrannical government.

I guess it is time to just abolish the bill of rights and save our government the trouble of slowly taking them all away from us. I have to go get my Nazi travel papers I need to fly from one city to another. I used to laugh about this as a kid watching the old WW2 films. That could never happen in a free country like ours. Neither could check points that stop people who have done nothing wrong. What is next check points and armed guards at all government buildings. Oh wait already here. Or maybe almost everything about our government will be classified and too secret for the people of this country to know. Never mind already happened. I know we need to disarm the people to make sure they cannot take their government back. The only people that should have guns are those approved by the regime. Oh they are working on that. Good.

PIPEWRENCH said:

Those darn pesky rights get in the way of a tyrannical government.

I guess it is time to just abolish the bill of rights and save our government the trouble of slowly taking them all away from us. I have to go get my Nazi travel papers I need to fly from one city to another. I used to laugh about this as a kid watching the old WW2 films. That could never happen in a free country like ours. Neither could check points that stop people who have done nothing wrong. What is next check points and armed guards at all government buildings. Oh wait already here. Or maybe almost everything about our government will be classified and too secret for the people of this country to know. Never mind already happened. I know we need to disarm the people to make sure they cannot take their government back. The only people that should have guns are those approved by the regime. Oh they are working on that. Good.

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The State of Alaska uses the Supreme Court decision Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990) as its guide for its sobriety checks, but they tend to be far and few between. The last sobriety check in south central Alaska (Anchorage specifically) was in 2012. Alaska also has a provision within its State Constitution that recognizes the individual right to privacy, which the US Constitution does not include. So far DUI checks have not been challenged in Alaska's courts.

Also, make a note of which States includes these draconian and constitutionally questionable practices, and which political party controls those particular States. There is only one political party in the US that supports and identifies with the practices of NAZI Germany, and it isn't the Republicans.

Glitch said:

The State of Alaska uses the Supreme Court decision Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990) as its guide for its sobriety checks, but they tend to be far and few between. The last sobriety check in south central Alaska (Anchorage specifically) was in 2012. Alaska also has a provision within its State Constitution that recognizes the individual right to privacy, which the US Constitution does not include. So far DUI checks have not been challenged in Alaska's courts.

Also, make a note of which States includes these draconian and constitutionally questionable practices, and which political party controls those particular States. There is only one political party in the US that supports and identifies with the practices of NAZI Germany, and it isn't the Republicans.

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I was referring to the so called safety check points. These were supposed to make sure you are wearing your seatbelt. I pulled up with my seat belt on figuring they would just wave me through. No. It was a full blown witch hunt/Nazi Check Point. After I stopped they asked to see my drivers license, insurance, and registration. They then asked if I had any weapons or drugs. I said no. Then they asked if I had been drinking because I had beer cans in a bucket in the back of my pickup. I said no I don't drink. They then asked what I was doing with those beer cans in the back of my truck. I said I recycle and all my friends throw their cans in that bucket for me. I am not concerned about the beer cans because I don't drink. The cop then shined his flashlight all around the inside of the truck.

I smoked cigarettes then and was pissed off over these sham safety check points so I had closed my ashtray before I pulled up. They noticed and the officer asked to see what was in the ashtray actually reaching into the truck. I told him if wanted to search my vehicle to get a warrant. He said he could call the K9 unit over and I would have to wait until they came. If they alerted on my vehicle they would get a warrant and search it. I said call the K9 unit if you want to waste both of our time. He shined the flashlight into my eyes and said you don't do drugs do you. I said no I don't but I did close the ashtray on purpose. I will call the K9 unit next time. Get our of here. If I had some friends as witnesses I would have gave him the Heil Hitler. Clearly a Nazi check point.

I was in complete compliance with the law and the police treated me and most everyone else like we are criminals. So much for the lie claiming we live in a free country. The only reason they did not call the K9 was because I was white. Fact. If I were Black or Hispanic I would probably have went to jail for some trumped up charge. Maybe I was guilty of impeding their violating or my rights.

Common Sense 1 said:

Stunning? Why would the court allow this to happen? Hope it's appealed and this mistake corrected!


"The Court did reiterate that the search was illegal, but the decision was to allow the evidence, and thus the conviction, to stand:

“We do not condone this illegal behavior by law enforcement; the better practice is to obtain a warrant before entering a home,” the panel continued. “Ordinarily, the evidence found here would be excluded. But because the government had so much other evidence of probable cause, and had already planned to apply for a warrant before the illegal entry, the evidence is admissible.
“Though the government should not profit from its bad behavior, neither should it be placed in a worse position than it would otherwise have occupied,” the panel concluded."

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Having sat in courtrooms for various reasons--I have been a witness in trials and served on a jury, but never have been tried for a crime myself--I have seen twice a really guilty person walking with charges dismissed because there was a problem with how the evidence was obtained. In both cases there had been no intention to screw up and it was really unfortunate that the guilty were able to get off on that kind of technicality.

This is really a tough call. A criminal should not be allowed to go free purely because an officer of the law screwed up because a smart lawyer can too often find some technicality to use to get a case dismissed. But neither should there be no consequences for failure to exercise due process. I am really torn between these two things.

I don't know what the answer is.

PIPEWRENCH said:

I was referring to the so called safety check points. These were supposed to make sure you are wearing your seatbelt. I pulled up with my seat belt on figuring they would just wave me through. No. It was a full blown witch hunt/Nazi Check Point. After I stopped they asked to see my drivers license, insurance, and registration. They then asked if I had any weapons or drugs. I said no. Then they asked if I had been drinking because I had beer cans in a bucket in the back of my pickup. I said no I don't drink. They then asked what I was doing with those beer cans in the back of my truck. I said I recycle and all my friends throw their cans in that bucket for me. I am not concerned about the beer cans because I don't drink. The cop then shined his flashlight all around the inside of the truck.

I smoked cigarettes then and was pissed off over these sham safety check points so I had closed my ashtray before I pulled up. They noticed and the officer asked to see what was in the ashtray actually reaching into the truck. I told him if wanted to search my vehicle to get a warrant. He said he could call the K9 unit over and I would have to wait until they came. If they alerted on my vehicle they would get a warrant and search it. I said call the K9 unit if you want to waste both of our time. He shined the flashlight into my eyes and said you don't do drugs do you. I said no I don't but I did close the ashtray on purpose. I will call the K9 unit next time. Get our of here. If I had some friends as witnesses I would have gave him the Heil Hitler. Clearly a Nazi check point.

I was in complete compliance with the law and the police treated me and most everyone else like we are criminals. So much for the lie claiming we live in a free country. The only reason they did not call the K9 was because I was white. Fact. If I were Black or Hispanic I would probably have went to jail for some trumped up charge. Maybe I was guilty of impeding their violating or my rights.

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Sounds to me like they were violating your Fourth Amendment rights. They are allowed to perform checkpoints for immigration, sobriety checks, and to check for valid driver's licenses and registration, but the Supreme Court has prohibited them from using checkpoints to root out general crime in City of Indianapolis v. Edmond, 531 U.S. 32 (2000).

When pulled over at one of these checkpoints they know everything about you through your driver's license, registration, and insurance so there is no need to say who you are and there is certainly no need to answer any of their questions. Tell law enforcement that you do not consent to a search and ask if you being detained. Otherwise say absolutely nothing. By your description they appeared to be on an unconstitutional fishing trip. Saying anything would only make things worse, so you are better served by not saying anything at all.

AlbqOwl said:

Having sat in courtrooms for various reasons--I have been a witness in trials and served on a jury, but never have been tried for a crime myself--I have seen twice a really guilty person walking with charges dismissed because there was a problem with how the evidence was obtained. In both cases there had been no intention to screw up and it was really unfortunate that the guilty were able to get off on that kind of technicality.

This is really a tough call. A criminal should not be allowed to go free purely because an officer of the law screwed up because a smart lawyer can too often find some technicality to use to get a case dismissed. But neither should there be no consequences for failure to exercise due process. I am really torn between these two things.

I don't know what the answer is.

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If by "screwed up" you mean the law enforcement officer violated someone's individual rights, we'll have to agree to disagree. Law enforcement is able to make arrests and provide evidence on a daily basis without violating the rights of others. So the "I screwed up" excuse doesn't wash. It isn't as if they are making a typo in some report, they are violating someone's constitutionally protected individual right, and that is never acceptable.

Glitch said:

Sounds to me like they were violating your Fourth Amendment rights. They are allowed to perform checkpoints for immigration, sobriety checks, and to check for valid driver's licenses and registration, but the Supreme Court has prohibited them from using checkpoints to root out general crime in City of Indianapolis v. Edmond, 531 U.S. 32 (2000).

When pulled over at one of these checkpoints they know everything about you through your driver's license, registration, and insurance so there is no need to say who you are and there is certainly no need to answer any of their questions. Tell law enforcement that you do not consent to a search and ask if you being detained. Otherwise say absolutely nothing. By your description they appeared to be on an unconstitutional fishing trip. Saying anything would only make things worse, so you are better served by not saying anything at all.

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This was 20+ years ago. The seat belt was the big issue being forced on us by the insurance companies that own our government. I have seen the police sitting in their car across from a club or bar. I stopped in to a club one night to see if any of my friends were still there by chance. I was on call and just parked the plumbing van at the shop where I worked. The club was a block away. It was about 10:00pm and they had all gone home so I talked to the bar tender who was also a friend of mine. All I had was a coke because I was on call. Oh yea I was pulled over for DUI when I left. According to the cop I was weaving. Then he actually smelled alcohol on my breath. Luckily I just barely passed the field sobriety test so he decided I was OK to drive home. I didn't even bother telling him I used to be a cop and he was full of ****.

But for the most part the police I have dealt with have been very professional, courteous, and respectful. But it is always the bad apples that leave a bad taste in your mouth and the ones you remember. It is sad how much damage is done to the reputation of so many good officers by the one bad one.

It is also sad that they are under orders to violate our rights. I cannot believe that it is legal in this country to stop people who have done nothing wrong and start a witch hunt. Oh and makes me feel so much better that they cannot ask illegal aliens if they are here illegally but it is perfectly fine to grill a citizen about whether or not they are breaking our laws. NICE.

PIPEWRENCH said:

But for the most part the police I have dealt with have been very professional, courteous, and respectful.

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That has not been my experience, but I admit that my experiences with law enforcement have been far and few between.

PIPEWRENCH said:

But it is always the bad apples that leave a bad taste in your mouth and the ones you remember. It is sad how much damage is done to the reputation of so many good officers by the one bad one.

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I find it is exactly the opposite. It is the good ones who stand out in the crowd, and the ones that I have remembered.

PIPEWRENCH said:

It is also sad that they are under orders to violate our rights. I cannot believe that it is legal in this country to stop people who have done nothing wrong and start a witch hunt. Oh and makes me feel so much better that they cannot ask illegal aliens if they are here illegally but it is perfectly fine to grill a citizen about whether or not they are breaking our laws. NICE.

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I have been in a situation where I could have been ordered to violate the rights of others and I had to make a conscientious decision that I would not abide by such orders, if they were ever given. Fortunately, I was never given any orders that could have violated the rights of others so I was never put to the test. Regardless of the profession, I cannot think of a situation where I would follow an order that I thought violated the rights of someone else. If given the order directly, I would refuse to comply directly. I do not hold with the old "I was just following orders" excuse.

Glitch said:

If by "screwed up" you mean the law enforcement officer violated someone's individual rights, we'll have to agree to disagree. Law enforcement is able to make arrests and provide evidence on a daily basis without violating the rights of others. So the "I screwed up" excuse doesn't wash. It isn't as if they are making a typo in some report, they are violating someone's constitutionally protected individual right, and that is never acceptable.

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Well I must be getting old because I don't find anything in my post to suggest that violating someone's constitutionally protected individual right is acceptable or used that as an excuse for anything.