But the Fourth Amendment generally requires more than one probable reason to justify a home search; A search warrant is required.76×76. See, e.g., Steagald v. United States, 451 U.S. 204, 212 (1981) (“[T]he Fourth Amendment drew a solid line at the entrance to the house. In the absence of urgent circumstances, this threshold cannot reasonably be exceeded without a judicial decision. (cited Payton v. New York, 445 U.S. 573, 590 (1980)). The house occupies a unique privileged space in the context of the Fourth Amendment.77×77. The warrant requirement serves an important function: it requires judges to find a probable reason (and police to prove a probable reason) before knowing whether the search will provide valid evidence.78×78 See Stuntz, op. cit.
cit., note 69, p. 884 (“Warrants. to execute the required judicial decision and the police officer`s statement of facts before the evidence is found. A public servant may not infringe on the sanctity of a home without first obtaining the approval of a magistrate on the basis of an independent evaluation of the evidence presented in an affidavit.79×79. Andrew Z. Lipson, Note, The Good Faith Exception as Applied to Illegal Predicate Searches: A Free Pass to Institutional Ignorance, 60 Hastings L.J. 1147, 1155 (2009). And the search warrant serves not only to ensure that officers will not invade a person`s privacy without sufficient suspicion, but also to check the power of the executive branch.80×80. Edieth Y. Wu, Domestic Spying and Why America Should Avoid the Slippery Slope, 16 S. Cal.
Rev. L. & Soc. Just. 3, 11 (2006); Michael Simitz, Note, Wilson v. Layne: All the World`s a Stage, but Your Home Is Not, 30 Seton Hall L. Rev. 922, 924 n.11 (2000). Therefore, the fact that the Seventh Circuit now allows officials to admit evidence uncovered during unconstitutional incursions into the House is an important development. The reluctance of the Seventh Judicial District to deter confirmatory searches by ordering the suppression of evidence when information illegally obtained from the affidavit was used to justify the search increases the power of the police at the expense of the judge`s judicial authority.81×81. See Supreme Court, 1987 Mandate — Leading Judgments, note 74, p.
167. In contrast, Marshall J. held that Murray`s two-part test was not a sufficient impediment to unlawful police conduct because an officer could easily make the decision to seek an arrest warrant appear “independent” by not including the results of the unlawful search in the application for an arrest warrant and simply stating that he intended to seek an arrest warrant. Murray v. United States, 487 U.S. 533, 547–48 (1988) (Marshall, J., dissenting); The Supreme Court, 1987 Term — Leading Cases, op. cit. Cit. note 74, pp.
165-66. Huskisson lowered that bar even further because an official no longer has to hide information originally obtained illegally from the judge. I agree with the majority that “. In the absence of a U.S. Supreme Court ruling that the due process clause requires the exclusion of unconstitutionally obtained evidence, any rule we adopt as to whether the evidence is or admits will be a rule of evidence declared by the courts. The U.S. Supreme Court has never ruled that the due process clause requires such an exclusion, but, on the contrary, has emphasized that the federal exclusion rule is “a court-created rule of evidence that Congress could deny.” (Concurring opinion of Black J. in Wolf v. Colorado, op. cit., 338 U.S. 25, 40.) California, in accordance with the great weight of authority, has always been non-exclusive [44 Cal. 2d 453], and if there is any virtue in the doctrine of stare decisis, this court should not abrogate this well-established rule unless there are compelling reasons to do so.
The difference of opinion stems from the fact that the majority seems to have found compelling reasons for such a change, whereas I have not. Finally, it was pointed out that there was no convincing evidence that the exclusionary rule was actually intended to prevent inappropriate search and seizure (see commentary, 47 Nw. L.Rev. 493, 497; cf. Allen, The Wolf Case, 45 Ill.L.Rev. 1, 20; 42 Cal.L.Rev. 120) and that “the disciplinary or educational effect of the court`s release of the accused for police misconduct is so indirect as to be at best only a slight deterrent [44 Cal. 2d 445]”. (Jackson, J., in Irvine v. California, 347 U.S. 128, pp.
136-137 [78 pp. Ct. 381, 98 L. Ed. 561].) Evidence originally obtained during an unlawful search or seizure may be admissible later if it is subsequently obtained through a constitutionally valid search or seizure. Murray v. U.S. is the modern interpretation of the independent source doctrine originally adopted in Nix v. Williams. In addition, some courts recognize an “extensive” doctrine that a partially flawed arrest warrant is upheld if, after excluding the tainted information that led to its issuance, the remaining immaculate information establishes sufficient probable reason to justify its issuance. See, for example, the South Dakota Supreme Court`s decision in State v.
Boll. In the meantime, at the suggestion of the U.S. Supreme Court, we have reviewed the rule to date that unconstitutional methods by which evidence is obtained do not affect its admissibility, and we have carefully weighed the various arguments advanced for and against the rule. It should be noted that in the absence of a finding by the U.S. Supreme Court that the due process clause requires the exclusion of unconstitutionally obtained evidence, any rule we adopt as to whether it excludes or admits evidence will be a rule of evidence declared by the courts. (See MacNabb v. United States, 318 U.S. 332, 341 [63 pp. Ct. 608, 87 L. Ed. 819]; About Lee v.
United States, 343 U.S. 747, 756 [72 pp. Ct. 967, 96 L. Ed. 1270].) Before a solid version of the exclusion rule was considered and adopted by federal courts, it had already been passed by at least one state court, the Iowa Supreme Court, as that court would later describe it: Huskisson also shows that the second point of the Murray test offers little additional protection to those harmed by an illegal search. The second issue in Murray requires the court to determine whether the illegal entry of government officials influenced the decision to seek the arrest warrant.68×68. Murray v. United States, 487 U.S. 533, 542 (1988). But “[t]he officers` statement.
is the only direct evidence of intent,” and officers have little incentive to admit that evidence uncovered during an illegal search influenced their decision to prosecute under an arrest warrant.69×69 in 547–48 (Marshall, J., differing); See also ID., p. 549 (Advocacy for a standard dependent on objective proof of government intent); Myron W. Orfield, Jr., Deterrence, Perjure, and the Heater Factor: An Exclusionary Rule in the Chicago Criminal Courts, 63 U. Colo. L. Rev. 75, 107 (1992) (“The majority of judges and public defenders [in Cook County, Illinois] and nearly half of prosecutors believe that the police lie more often than you don`t. When asked how often police officers were tried to avoid punishment, 92 percent said police at least “sometimes” lied, and 22 percent said police lied more than half the time they testified on Fourth Amendment matters. (footnotes omitted)); William J. Stuntz, Warrants and Fourth Amendment Remedies, 77 Va.
L. Rev. 881, 884 (1991) (“[T]he absence of a credible opponent (the defendant was found with incriminating evidence) invites the police to undermine the applicable standard of law by giving false testimony at suppression hearings.”); Steven Zeidman, essay, Policing the Police: The Role of the Courts and Prosecution, 32 Fordham Urb. L.J. 315, 325 (2005) (“Although there is no hard data, anecdotal evidence suggests that police officers `testify` with relative impunity.” (Footnotes omitted)). Second, if an officer admits that the evidence observed during a warrantless search influenced the decision to seek a warrant, as Detective Kinney did in this case.70×70 Huskisson, 926 F.3d to 373. The trial court remains free to accept further witness statements in order to avoid the suppression of evidence.71×71. Since public servants are the only source of information about their subjective intent, the practical effect of the second point of the independent source test is that government agents have ample leeway to conduct illegal searches and then rationalize those searches after the fact.
Even in criminal proceedings, the exclusionary rule does not simply prohibit the presentation of all evidence obtained in violation of the Fourth, Fifth, or Sixth Amendments. In Hudson v. Michigan,[30] Justice Scalia wrote for the U.S. Supreme Court: FN*. Texas has recently passed legislation (Acts 1953, 53d Leg., p. 669, c. 253, § 1; Crim code. Proc. 727a), North Carolina (Stats. 1951, chap. 644, § 1; Gen. Statistics.
§§ 15-27) and Maryland (Stats. 1947, chap. 752, p. 1849; Statistics. 1951, c. 145, 704, 710; Statistics. 1952, c. 59; Md. Ann.
Code, §§ 5, 5A (limited to administrative offences)), which prohibit the use of illegally obtained evidence.