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

What if...? said:

Would the evidence still have been there when they did?

Seems that it might not have still been there when a warrant was issued so its discovery wouldn't have been "inevitable".

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Stealers Wheel said:

You're suggesting that the law must allow for the criminal to dispose of incriminating evidence. This is not, nor ever has been the goal of the law, and no lawyer would ever argue that.

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What if...? said:

More to the specificity of the usage of the word "inevitable".

The latitude granted law enforcement at the height of the drug far went too far. Seiously dmaging 4th amendment rights. See civil forfeiture.

It is what it is, but the Founders wouldn't approve.

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Cordelier said:

Hats off to Mycroft and Jamesrage.... I agree with your posts, and what I'm going to say now doesn't apply to either of you.

But this decision is typical of the kind of conservative activism - especially in criminal law - that has become typical within the courts since the 1980's. The Fourth Amendment is clear on this matter... I don't know how anyone who considers themselves to be a strict constructionist or adhere to original intent (or whatever other label conservatives put on themselves when they want to look down on liberal activists) could dispute it:



Seems pretty clear to me. This is part of a trend - I've been having this debate in another thread on use of the Steele Dossier in FISA Warrant applications - going back to at least Justice Rehnquist's opinion in the 1983 Illinois v. Gates case. Seems to me that there are an awful lot of conservative judges who are all too willing to look past the wording of Constitution if it helps their "law and order" agenda.

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Stealers Wheel said:

Actually, no. There is a legal concept that applies in these matters called "inevitable discovery." Since the defendant was basically caught red-handed in the commission of a felony, the lack of a search warrant is largely a technicality. Think about it for a moment: If the facts of the situation were sworn out in a request for a warrant, is there any doubt that the warrant would have been issued? No, there is not. Hence, it is an academic exercise tantamount to the defendant saying "Aha! You didn't say 'mother may I." You can read about it here.

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jimbo said:

Isn't that the same concept as walking in on a robbery in process at a convenience store? LEO does not need a warrant to check the perps pockets for a stolen candy bar.

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clapee said:

I’ll tackle the second part first. Reliability and credibility are still factors with which courts will determine whether the facts give rise to probable cause to believe a crime was committed. ... (Edited for length)

With regard to your first part, I’ll ask you a question to clarify my point. Understanding that they LATER secured and executed a search warrant, what evidence was gathered by the unlawful entry?

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On the topic of the warrant application, Kinney testified inconsistently, contradicting himself and other government evidence. At first, he testified the task force’s plan was to apply for a warrant if Huskisson refused consent to search, regardless of whether they saw any evidence of drug activity within the house:

KINNEY: Depending on the conversation with Mr. Huskisson, if he granted consent to search, we would continue the search of the residence. If he didn’t, we would secure the residence and
obtain a search warrant.

But later Kinney suggested the plan was to apply for a warrant only if the entry team found methamphetamine in Huskisson’s home and Huskisson refused consent to search:

DEFENSE COUNSEL: And that after entering and securing that residence, you were going to ask for consent to search from Mr. Huskisson?

KINNEY: Yes, should we find the methamphetamine, gather a consent to search. If it was not granted, obtain a search warrant.

DEFENSE COUNSEL: Okay. So if you didn’t get consent, you were going to start the process for obtaining a warrant?

KINNEY: Yes.

DEFENSE COUNSEL: So no part of the plan was to start the process for obtaining a warrant prior to entry into the [Huskisson] residence?

KINNEY: That’s correct, yes.

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clapee said:

...Reliability and credibility are still factors with which courts will determine whether the facts give rise to probable cause to believe a crime was committed. The decision did not provide that an anonymous tip, without more, amounts to probable cause. In the particular case, there was evidence which corroborated the tip - that’s the point. And, I am aware of the two-prong test. I am a criminal defense attorney. That two-prong test was being misapplied to completely ignore tips, even when there was other evidence, which taken together with the tip, would give rise to probable cause. Gates merely clarified that the two-prong test, which was created by judicial fiat in the first place, that it is merely one factor to consider in the totality of the circumstances analysis.

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NotreDame said:

I am incredulous. So, even if I accepted as true, arguendo, the decision of Illinois v Gates was the product of a conservative ideology by conservatives on the Court, your reasoning alps assumes Illinois v Gates is inconsistent with the text and meaning of the 4th Amendment. But you provide no argument or evidence supporting the assumption Illinois v Gates is or ever was inconsistent with the text and meaning of the 4th Amendment.

Here’s a thought your argument ignores, maybe the decisions of Aguilar and Spinelli were inconsistent with the the text and meaning of the 4th Amendment. Maybe those tests couldn’t be reconciled with the 4th Amendment and Illinois v Gates, with a totality of the circumstances test, in which the two pronged test of Aguilar and Spinelli can form part of the calculus under the totality of the circumstances approach, is more consistent with the text and meaning of the 4th Amendment.

The historical meaning of probable cause is more amenable to the test of Illinois v Gates, and Rehnquist discusses this in the decision, and his remarks are right. Probable cause deals with probabilities and probabilities are established by facts, information, not hard core tests that exclude or ignore some of the very facts germane to establishing probable cause. The totality of the circumstances tests allows for the every fact relevant to probable cause to be considered. The test in Illinois v Gates is more consistent with the text and meaning of the 4th Amendment.

So, it remains to be shown that Illinois v Gates is a product of conservative activism.

In addition, what, if anything, about the 7th Circuit decision do you perceive as erroneous? Do you have something substantive other than another soapbox diatribe about conservative activism?


Sent from my iPhone using Tapatalk

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Cordelier said:

Interesting. Especially the part I put in bold. I'm going to address the case in point (US v. Huskisson) first, and then I'll swing back and address the broader Gates-era judicial activism question.

As you point out, and as the Government concedes, the entry was unlawful and led to the discovery of the suspected meth. This evidence was itself cited in the warrant request. It should have been subject to the exclusionary rule. True, there are exceptions for inevitable discovery (a doctrine itself the product of the Gates-era Nix v. Williams case), but as you point out - and as I bolded above - reliability and credibility are operative factors. Would the authorities have obtained the warrant anyway? Intent becomes critical at this point, and here Detective Kinney's contradictory testimony comes into play (see pages 5-6 of the case link posted above):



So which is it? Was the search warrant going to be sought regardless of whether or not drugs were found, as in Det. Kinney's former testimony... or did the warrant request hinge on finding drugs during the illegal entry, as Det. Kinney testified in his latter testimony? "The district court denied Huskisson’s motion to suppress, finding Kinney’s first statement to be more accurate and more consistent with the other evidence presented by the government." (Huskisson, Pg. 6). Well, I suppose it would have been more consistent if that was the commonly-agreed testimonial strategy. If I were the Judge and faced with having to make a ruling on contradictory testimony, though, my inclination would be to look at the actions of the witness in question... first, he entered the premises illegally; second, there were no exigent circumstances which precluded the acquisition of the warrant - the meeting was initiated and arranged by the police through their informant; third, the illegal entry was conducted over the objections of the defendant. So coming into this, the police are already starting from a deep hole... and then they compound it by offering contradictory testimony? Sorry... that wouldn't fly. This was a fishing expedition from first to last. At what point in this process were Mr. Huskisson's 4th Amendment rights respected in the least iota? They weren't... it's almost as if the 4th Amendment didn't even exist. The authorities did an illegal entry on a meeting they set up and then got a Judge to rubber stamp a warrant they supported with evidence obtained. No can do.... the illegal entry tainted the evidence obtained. Fruit of the poisonous tree doctrine.

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If I were the Judge and faced with having to make a ruling on contradictory testimony, though, my inclination would be to look at the actions of the witness in question... first, he entered the premises illegally; second, there were no exigent circumstances which precluded the acquisition of the warrant - the meeting was initiated and arranged by the police through their informant; third, the illegal entry was conducted over the objections of the defendant. So coming into this, the police are already starting from a deep hole... and then they compound it by offering contradictory testimony? Sorry... that wouldn't fly.

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As you point out, and as the Government concedes, the entry was unlawful and led to the discovery of the suspected meth. This evidence was itself cited in the warrant request. It should have been subject to the exclusionary rule. True, there are exceptions for inevitable discovery (a doctrine itself the product of the Gates-era Nix v. Williams case),

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NotreDame said:

That would not "fly" according to you, but why does that matter? It does not matter what you would have done if you were the judge. You were not the judge. What is the basis for concluding the trial court's decision to deny the motion to suppress was erroneous? What you obsess over in answering this question is misplaced.

First, the "actions of the witness in question" is not an accurate reformulation of the second Murray factor. The second factor is whether the illegal entry and field test affected the government's decision to obtain a search warrant. The testimony of Cline was but one piece of evidence of the "government's decision." Cline was not the government. Apparently, there was other evidence that showed the government would have sought a search warrant regardless, and that evidence was consistent with Cline's initial testimony, and not to be outweighed by Cline's second inconsistent statement. The person in the best position to evaluate the entirety of the evidence and testimony germane to this factor was the trial judge and subsequently, the 7th Circuit who had the record and evidence before them on appeal.



So what? The 7th Circuit's holdings are not based upon the doctrine of inevitable discovery.

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Cordelier said:

Interesting. Especially the part I put in bold. I'm going to address the case in point (US v. Huskisson) first, and then I'll swing back and address the broader Gates-era judicial activism question.

As you point out, and as the Government concedes, the entry was unlawful and led to the discovery of the suspected meth. This evidence was itself cited in the warrant request. It should have been subject to the exclusionary rule. True, there are exceptions for inevitable discovery (a doctrine itself the product of the Gates-era Nix v. Williams case), but as you point out - and as I bolded above - reliability and credibility are operative factors. Would the authorities have obtained the warrant anyway? Intent becomes critical at this point, and here Detective Kinney's contradictory testimony comes into play (see pages 5-6 of the case link posted above):



So which is it? Was the search warrant going to be sought regardless of whether or not drugs were found, as in Det. Kinney's former testimony... or did the warrant request hinge on finding drugs during the illegal entry, as Det. Kinney testified in his latter testimony? "The district court denied Huskisson’s motion to suppress, finding Kinney’s first statement to be more accurate and more consistent with the other evidence presented by the government." (Huskisson, Pg. 6). Well, I suppose it would have been more consistent if that was the commonly-agreed testimonial strategy. If I were the Judge and faced with having to make a ruling on contradictory testimony, though, my inclination would be to look at the actions of the witness in question... first, he entered the premises illegally; second, there were no exigent circumstances which precluded the acquisition of the warrant - the meeting was initiated and arranged by the police through their informant; third, the illegal entry was conducted over the objections of the defendant. So coming into this, the police are already starting from a deep hole... and then they compound it by offering contradictory testimony? Sorry... that wouldn't fly. This was a fishing expedition from first to last. At what point in this process were Mr. Huskisson's 4th Amendment rights respected in the least iota? They weren't... it's almost as if the 4th Amendment didn't even exist. The authorities did an illegal entry on a meeting they set up and then got a Judge to rubber stamp a warrant they supported with evidence obtained. No can do.... the illegal entry tainted the evidence obtained. Fruit of the poisonous tree doctrine.

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Cordelier said:

Interesting. Especially the part I put in bold. I'm going to address the case in point (US v. Huskisson) first, and then I'll swing back and address the broader Gates-era judicial activism question.

As you point out, and as the Government concedes, the entry was unlawful and led to the discovery of the suspected meth. This evidence was itself cited in the warrant request. It should have been subject to the exclusionary rule. True, there are exceptions for inevitable discovery (a doctrine itself the product of the Gates-era Nix v. Williams case), but as you point out - and as I bolded above - reliability and credibility are operative factors. Would the authorities have obtained the warrant anyway? Intent becomes critical at this point, and here Detective Kinney's contradictory testimony comes into play (see pages 5-6 of the case link posted above):



So which is it? Was the search warrant going to be sought regardless of whether or not drugs were found, as in Det. Kinney's former testimony... or did the warrant request hinge on finding drugs during the illegal entry, as Det. Kinney testified in his latter testimony? "The district court denied Huskisson’s motion to suppress, finding Kinney’s first statement to be more accurate and more consistent with the other evidence presented by the government." (Huskisson, Pg. 6). Well, I suppose it would have been more consistent if that was the commonly-agreed testimonial strategy. If I were the Judge and faced with having to make a ruling on contradictory testimony, though, my inclination would be to look at the actions of the witness in question... first, he entered the premises illegally; second, there were no exigent circumstances which precluded the acquisition of the warrant - the meeting was initiated and arranged by the police through their informant; third, the illegal entry was conducted over the objections of the defendant. So coming into this, the police are already starting from a deep hole... and then they compound it by offering contradictory testimony? Sorry... that wouldn't fly. This was a fishing expedition from first to last. At what point in this process were Mr. Huskisson's 4th Amendment rights respected in the least iota? They weren't... it's almost as if the 4th Amendment didn't even exist. The authorities did an illegal entry on a meeting they set up and then got a Judge to rubber stamp a warrant they supported with evidence obtained. No can do.... the illegal entry tainted the evidence obtained. Fruit of the poisonous tree doctrine.

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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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Cordelier said:

I never suggested - and nothing in the Aguilar-Spinelli test mandates - that anonymous tips should be completely ignored. But let's face facts here... they do amount to hearsay. Use them to focus an investigation, by all means - but if you lean on them to establish probable cause to obtain a warrant by making a prima facie case that some of the information they contain seems valid - as the totality of circumstances test does - then are you not lowering the 4th Amendment's protections to the point of near-irrelevance? Are you not opening the doors for potential abuse too far? If I'm a police detective and investigating an individual, presumably I'm going to have some valid and potentially incriminating evidence on that person.... it may be circumstantial and not be enough to give me probable cause to obtain a warrant - but if I leverage that information, embellish it with a few plausibly imagined details, and then package it as an anonymous tip I mail myself, then presto! All of the sudden I have probable cause, do I not?

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clapee said:

His testimony says, which is not contradictory, that they were going to try to obtain consent, and if consent were not given, they would apply for a warrant. The part you focus on, “had we found the meth[]...” Do you know if he meant we, as in the police, or we as in the informant? The case provided that the investigating officers believed the informant would actually have to see the meth before they applied for a warrant.

And, much like a Franks hearing that challenges a search warrant, the court would consider all evidence but what was obtained through the unlawful entry. The court even said this in the opinion. And, even excluding that, there was plenty of evidence to establish probable cause.

Again, you never answered my question. What evidence was seized unlawfully? What would be excluded?

And, this case did not rely on inevitable discovery, but alternative source.

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clapee said:

The two-prong test would basically require that anonymous tips be ignored as law enforcement can’t demonstrate reliability or credibility. Because they’re... anonymous. And that’s how the lower courts were interpreting it. And Gates said. No. You can look at other facts which in part an indivisible of reliability on the anonymous tip, that corroborates the anonymous tip.

And, yes, they do about to hearsay. But, hearsay is admissible in determining probable cause. Hearsay is a trial objection.

With regard to your slipper slope argument, are you aware of how law enforcement prove reliability and credibility of an informant on a search warrant? They simply state they have had prior dealings with the informant n the information has always been truthful and he has helped secure evidence to assist in the prosecution of other cases. That’s it. In fact, the defense isn’t even entitled to know the identity of the CI unless it can prove it is necessary to a particular defense. My basic argument is, if people are going to lie, they’re going to lie. And they can just as adequately lie with the two-prong rest as without.

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Cordelier said:

Here's where your argument breaks down - the independent source doctrine elucidated in Murray v. US, 487 US 533 (1988) specifically states that any ex post facto warrants consequent to an illegal entry must be untainted by the initial illegality. When the authorities cited the drugs they discovered as part of their warrant application, did they not implicitly taint their application?

As for Det. Kinney's testimony, the informant was acting at the behest of the authorities. They were the ones who directed him to set up the meeting. Accordingly, as long as the informant was actively cooperating with the investigation, I don't see an operative distinction existing between himself and the police. If the independent source doctrine was operative in this case, there would have been no necessity for the informant to have seen the drugs before applying for the warrant.... The police had the informant's initial admissions about his drug-dealing history with Huskisson and they had the surveillance evidence of the nine phone calls with Huskisson setting up the meeting. It seems to me it would have been a easy matter to obtain a warrant prior to the entry. If the meeting then occurred and the informant couldn't confirm the presence of the drugs and so signal the police, then they could have chosen not to exercise the warrant at their discretion. Instead of going down this road, though, it's my contention that the police were seeking to manufacture an exigent circumstance that demanded a warrantless entry that didn't exist in fact. The drugs were seized unlawfully in the illegal search and when the police cited the drugs in making their ex post facto warrant application, they inadvertently precluded a Murray justification by tainting it with illegally obtained evidence. It was sloppy police work and a sloppy legal opinion on the part of the 7th Amendment finding in their favor. The drug evidence obtained in the illegal entry should have been excluded from the trial.

I preemptively cited inevitable discovery in relation to Kinney's testimony because, even though it wasn't relied on in this case, there's a potential argument to be made that if the police were going to seek a warrant regardless of whether or not the informant signaled the presence of the drugs, then one would have been forthcoming regardless. However, the validity of applying this exception to the exclusionary rule was obviated by the contradictions in the testimony.

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Cordelier said:

That's factually incorrect. The two-prong test only demands that anonymous tips can't be relied on in establishing probable cause. The Aguilar-Spinelli test has no bearing on the course of an investigation or on the indicative factors that may serve to guide it. I don't see the problem with this... if the validity of a warrant is subsequently challenged by a defendant, does not the accused have a 6th Amendment right to confront any witness against him?

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clapee said:

The first half of your post is right on. The second half is not quite right. If there is sufficient information to establish probable cause, then there are certain situations where the warrant requirement falls away. For example, if there is probable cause to believe there are narcotics in a car during a traffic stop. The inherently mobile nature of a car provides sufficient justification to dispatch with the warrant requirement.

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clapee said:

However, there are very few reasons why law enforcement may force their way into a house without a warrant. An example of such a situation would be if the LEO thought someone inside was in serious danger of harm.

This is directly relevant to this case. Had law enforcement not applied for a warrant in this case, the meth would have been excluded. However, because they sought and secured a warrant which was subsequently executed, the seizure of the meth actually resulted from the execution of the search warrant, rather than the unlawful entry. The police actually entered the house to secure it and preserve the evidence, rather than to look for it or seize it.

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clapee said:

The exclusionary rule was established to deter law enforcement from unlawful activity. This case actually acts as an additional incentive to seek a warrant, notwithstanding an earlier violation. This is preferable to the alternative actions law enforcement might take if there is questionable behavior at the outset.

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Cordelier said:

Your Murray argument is superfluous... the Independent Source doctrine can't apply because the evidence obtained in the illegal entry was citied in requesting the ex post facto warrant. For Murray to be operative, the probable cause presented would necessarily have to be untainted by the initial illegality, would it not?

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clapee said:

This is not true. There needs to be more than just probable cause to believe a felony is being committed in a residence for law enforcement to enter without a warrant. In your example where a husband is beating his wife, law enforcement may enter without a warrant to protect the wife from harm, and any observations made during such entry would be admissible under the plain view doctrine. Or, for example, if there is a reasonable belief that evidence will be destroyed. So, a warrantless entry of a home or other building requires probable cause + some exigent circumstance.

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What if...? said:

So why did they get a warrant after the fact?

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NotreDame said:

No, it wouldn’t. The independent source doctrine was conceived because some part of the affidavit of probable cause of the search warrant is tainted by illegality and conceived expressly to address the fact some part of the APC of the search warrant is tainted by illegality. The relevant inquiry by the trial court and appellate court is whether probable cause is established by the information and facts alleged in the APC that is not tainted by the unlawful police conduct. In other words, ignoring the parts of the APC that are the product of unlawful police action, and analyzing what’s remaining, does what’s remaining establish PC.

Murray’s first factor is especially applicable here precisely and exactly because the search warrant contained unlawful police action.

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clapee said:

You are incorrect insofar as you presume that a warrant that contains ill-gotten or otherwise improper information invalidates the warrant in toto. That is not the case. The ill-gotten evidence is excluded and the balance of the evidence is considered to determine whether probable cause was still established.

And, I don’t disagree there was ample evidence to establish probable cause prior to the informant actually visualizing the meth at that time. I wasn’t suggesting it was necessary in this case. Rather, the investigator that it was necessary.

Finally, the activity of the informant and the activity of the police cannot be conflated. Assuming the police officer thought it was necessary for the informant to visualize the meth, then his testimony makes sense and does not contradict itself.

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