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The following discussion comes from your week 5 readings. Outside research to address these issues is encouraged. I would suggest using the online library for additional sources of information and research.  In addition, I would recommend utilizing the legal studies program guide. P

There are various identification methods used in the criminal justice system. There are also two different types of evidence used, physical evidence and circumstantial evidence.

This discussion  examines the reliability of the various methods used and examines the two different types of evidence.

Please thoroughly discuss each of the following:

  1. Discuss the various identification methods used in the criminal justice system. Discuss some of the flaws with eye witness identifications?
  2. What is the difference between physical evidence and circumstantial evidence? Which do you believe is more reliable to a jury? Discuss why.
  3. What are some of the benefits and drawbacks to relying on DNA evidence in a criminal case?

Fordham Law Review Fordham Law Review

Volume 28 Issue 3 Article 1

1959

The Defense of Entrapment and Related Problems in Cirminal The Defense of Entrapment and Related Problems in Cirminal

Prosecution Prosecution

Paul W. Williams

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Part of the Law Commons

Recommended Citation Recommended Citation
Paul W. Williams, The Defense of Entrapment and Related Problems in Cirminal Prosecution, 28 Fordham
L. Rev. 399 (1959).
Available at: https://ir.lawnet.fordham.edu/flr/vol28/iss3/1

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The Defense of Entrapment and Related Problems in Cirminal Prosecution The Defense of Entrapment and Related Problems in Cirminal Prosecution

Cover Page Footnote Cover Page Footnote
Member of the New York Bar.

This article is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol28/iss3/1

THE DEFENSE OF ENTRAPMENT AND RELATED
PROBLEMS IN CRIMINAL PROSECUTION

PAUL W. WILLIAMS*

TBE defense of entrapment is one of man’s earliest recorded pleas.
The Bible tells us that Eve, when accused of eating the forbidden

fruit, protested: “The serpent beguiled me, and I did eat.”1 Yet, strangely
enough, entrapment was not clearly recognized as a valid defense in the
federal courts until the 1932 case of Sorrells v. United States.’ It is
interesting to note that the English courts have never squarely upheld
the defense of entrapment. 3

Entrapment was rejected by the New York Supreme Court in a Civil

* Member of the New York Bar.

1. Genesis 3:13.
2. 287 U.S. 435 (1932). Mr. Justice McReynolds dissented. The earliest reported case

in the federal courts which considered the defense of entrapment was United States v.
Whittier, 28 Fed. Cas. 591, 594 (No. 16,688) (C.C.E.D. Mo. 1878), in which the concurring
opinion approved the use of decoy letters and stated: “No court should, even to aid in de-
tecting a supposed offender, lend its countenance to a violation of positive law, or to con-
trivances for inducing a person to commit a crime. Although a violation of law by one
person in order to detect an offender will not excuse the latter, or be available to him as a
defense, yet resort to unlawful means is not to be encouraged. When the guilty intent to
commit has been formed, any one may furnish opportunities, or even lend assistance, to
the criminal, with the commendable purpose of exposing and punishing him.”

In United States v. De Bare, 25 Fed. Cas. 796 (No. 14,935) (EfD. Wis. 1875), a post-
master attempted to trap a thief. Having recovered stolen stamps, he forwarded them, on the
instructions of his superiors, to the defendant who was expecting them. The defendant was
then arrested for receiving stolen property. The court held that there could be no con-
viction even though a criminal intent existed since after recovery the stamps were no
longer stolen property. Woo Wai v. United States, 223 Fed. 412 (6th Cir. 1915), and
United States v. Healy, 202 Fed. 349 (D. Mont. 1913), are the first reported cases in
which a federal court acquitted a defendant because he was entrapped. See also Note,
41 Yale LJ. 1249 (1932).

In the Healy case the court declared: “Decoys are permissible to entrap criminals, but
not to create them; to present opportunity to those having intent to or willing to commit
crime, but not to ensnare the law-abiding in unconscious offending. Where a statute, as
here, makes an act a crime regardless of the actor’s intent or knowledge, ignorance of fact
is no excuse if the act be done voluntarily; but when done upon solicitation by the
government’s instrument to that end ignorance of fact stamps the act as involuntary, and
excuses, or at least estops the government from a conviction. In the former case the actor
is bound to know the facts, and acts at his peril. In the latter case he is relieved of the
obligation by the government’s invitation, which is of the nature of fraudulent conceal-
ment and deceit and, if not consent, yet doth work an estoppel. Though the seller has
violated the statute, he was the passive instrument of the government, and his is a blame-
less wrong for which he cannot be justly convicted.” 202 Fed. at 350.

3. Williams, Criminal Law § 195, at 620 (1935). See also Rex v. Martin, Russ. & Ry.
196, 168 Eng. Rep. 757 (K.B. 1811); Rex v. Holden, Russ. & Ry. 154 (Assiz. 1809).

FORDHAM LAW REVIEW

War case, Board of Comm’rs v. Backus.4 Referring to Eve’s defense
that the serpent had beguiled her, the court declared:
That defence was overruled by the great Lawgiver, and whatever estimate we
may form, or whatever judgment pass upon the character or conduct of the tempter,
this plea has never since availed to shield crime or give indemnity to the culprit, and
it is safe to say that under any court of civilized, not to say christian ethics, it
never will.5

As a prophet the court could have hardly been more mistaken.’
There is no other well-recognized defense in criminal law whose basis

has been the subject for so much dispute, nor is there one which affords
more difficulty in its practical application. It is an ancient maxim that
the end does not justify the means. The problem is to find an objective
standard which will be helpful in gauging the propriety of the means
used in detecting criminal activity.

Judge Learned Hand has suggested that the entrapment of a criminal
by officially instigated activity may be excused where there is either “an

4. 29 How. Pr. 33 (N.Y. Sup. Ct. 1864).
5. Id. at 42.
6. Forty-six states have allowed the defense. Comment, The Doctrine of Entrapment

and Its Application in Texas, 9 Sw. L.J. 456, 465 n.44 (1955) (state by state listing). Ten-
nessee and New York are the only states which have so far rejected the defense of entrap-
ment. Cf. People v. Mills, 178 N.Y. 274, 289, 70 N.E. 786, 791 (1904): “The courts do not
look to see who held out the bait, but who took it.” See People v. Krivitzky, 168 N.Y. 182,
61 N.E. 175 (1901); People v. Conrad, 102 App. Div. 566, 92 N.Y. Supp. 606, 19 N.Y. Crim.
259 (1st Dep’t), aff’d, 182 N.Y. 529, 74 N.E. 1122 (1905) (setting a trap to catch a
criminal no defense where defendant attempted to perform an abortion on patient decoy) ;
People v. Schacher, 47 N.Y.S.2d 371 (N.Y.C. Magis. Ct. 1944) (violation of OPA regulation).
It is possible that the New York cases may be explained as falling within the category
of crimes involving serious bodily injury. Therefore, the defense of entrapment was not
favorably received, although the opinions in those cases are not predicated on that theory.
Cf. Model Penal Code § 2.10(3) (Tent. Draft No. 9, 1959). See Guarro v. United
States, 237 F.2d 578, 582 (D.C. Cir. 1956), where the court distinguished narcotic cases
from sexual assault cases. Cf. Coins v. State, 192 Tenn. 32, 237 S.W.2d 8 (1951) (dictum) ;
Thomas v. State, 182 Tenn. 380, 187 S.W.2d 529 (1945) ; Note, Entrapment-Federal Court
Rule Reaffirmed-the Tennessee Rule?, 26 Tenn. L. Rev. 554 (1959). See also Kearns v.
Aragon, 65 N.M. 119, 333 P.2d 607, 610 (1959) (citing cases to support proposition that the
defense of entrapment is not available where specific intent is not essential element of crime) ;
Model Penal Code 13-24 (Tent. Draft No. 9, 1959); Clark & Marshall, Crimes §§ 153-55
(5th ed. 1952); Donnelly, Judicial Control of Informers, Spies, Stool Pigeons and Agent
Provocateurs, 60 Yale L.J. 1091 (1951); Mikell, The Doctrine of Entrapment in the
Federal Court, 90 U. Pa. L. Rev. 245 (1942); Williams, Entrapment-A Legal Limitation
on Police Techniques, 48 J. Crim. L. 343 (1957); Note, Entrapment by Government Of-
ficials as a Matter of Law, 8 Am. U.L. Rev. 58 (1959); Note, Entrapment Doctrine in the
Federal Courts and Some State Court Comparisons, 4 A.J. Crim. L. 447 (1950); Note, En-
trapment as a Defense, 8 Ala. L. Rev. 374 (1956); Note, Entrapment, 6 Buffalo L. Rev. 348
(1957); Note, Entrapment in North Carolina, 34 N.C.L. Rev. 536 (1956); Doctrine of
Entrapment, 35 N.D.L. Rev. 144 (1959).

400 [Vol. 28

DEFENSE OF ENTRAPMENT

existing course of similar criminal conduct” or an “already formed de-
sign” or “ready complaisance.”‘

A recent case in the United States District Court for the Southern
District of New York, United States v. Silva,8 gave rise to a renewed
consideration of the defense of entrapment. This was a narcotics case
tried without a jury. The defendant, charged with the unlawful sale
of narcotics, acknowledged that he delivered the drugs and received
money on the two occasions set forth in the indictment. However, he
denied that he was, in fact, a principal and pleaded the defense of entrap-
ment-that the crime was induced by the actions and conduct of a
government agent.

The question posed in the case was the conflict of testimony between
the Government’s special employee, who was the informer, and the
defendant. The defendant testified that he was led into addiction by the
informer who originally gave him drugs free of charge for a period of
time. Later, the informer charged the defendant $5 “per shot” which the
informer injected intravenously by the use of a hypodermic needle. The
defendant testified that with respect to the first transaction charged in
the indictment, he was in need of a “shot” and penniless. Going to the
room of the informer, the defendant was told the informer would take
care of the defendant if he would deliver a package. The defendant
agreed to do so and brought the package to his own apartment, where

7. United States v. Becker, 62 F.2d 1007, 1005 (2d Cir. 1933). See also Badon v. United
States, 269 F.2d 75, 80 (5th Cir. 1959): “Entrapment is given effect as a defense only when
the law officers envisage the crime, plan it and activate its commission by one not thereto-
fore intending its perpetration; or where the officers pursue tactics which offend common
conceptions of decency.” Compare Childs v. United States, 267 F.2d 619 (D.C. Cir.
1958), cert. denied, 359 U.S. 948 (1959) (“reasonable suspicion” that defendant is engaging
in criminal activities enough to justify entrapment), with Giordenello v. United States,
357 U.S. 480, 485-86 (1958) (need substantial factual basis upon which a finding of
“probable cause” in arrest and search warrant cases can rest). See also Casey v. United
States, 276 U.S. 413, 414-19 (1928) (“probable cause” in an entrapment case). Cf. Drapr v.
United States, 79 Sup. Ct. 329 (1959) (hearsay information supplied by theretofore reliable
informer grounds constituting “probable cause” permitting defendant’s arrest without a
warrant).

That “probable cause” as used in the fourth amendment is virtually the same concept
as the “reasonable grounds” terminology used in the Narcotics Control Act, 70 Stat. 570
(1956), 26 US.C. § 7607 (Supp. V, 1958), see United States v. Walker, 246 F2d 519
(7th Cir. 1957). See also Henry v. United States, 28 U.S.L. Week 4015 (U.S. Nov. 23,
1959): “Probable cause exists if the facts and circumstances known to the officer %warrant
a prudent man in believing that the offense has been committed…. .” Id. at 4016. “[Aln
arrest is not justified by what the subsequent search discloses. . . .” Ibid. Under our
system suspicion is not enough for an officer to lay hands on a citizen. It is better, so the
Fourth Amendment teaches, that the guilty sometimes go free than that citizens be subject
to easy arrest.” Id. at 4017.

8. United States v. Silva, Criminal No. 157-201, S.D.N.Y., March 4, 1959.

1959]

FORDHAM LAW REVIEW

the informer later appeared with another person who turned out to be
the narcotics agent. The defendant received $100 from the agent, which
was turned over to the informer, and received an injection of heroin
for his services.

A second transaction took place about twelve days later and fol-
lowed substantially the same pattern. Both the agent and the informer
testified at the trial.9

It was on this state of facts that the court found in favor of the de-
fendant. Judge Edward J. Weinfeld, in an opinion from the bench, said
in part:
The informer’s activities are spread upon the record. He was a professional spe-
cial employee who was paid by Federal narcotics agents with Government funds for
each case he ‘made’. Payment was dependent upon the informer ‘making’ a case
which meant an initial introduction and a sale to a narcotics agent. In all, the in-
former made, according to his own testimony and that of the agent, eighteen cases
including this one. This appears to have been his sole business over a period of two
years. During the period of his services as a paid informer, he was convicted in the
State court on a narcotics charge. Previously while in the Army he had been con-
victed of two separate offenses and had been dishonorably discharged.’ 0

The court further commented on the informer’s incentive to induce
the commission of the crime:
Since the informer was to be paid only in those cases wherein his efforts were
successful, and his livelihood was dependent upon the funds derived from his activi-
ties, he had every motive to induce the commission of the offense charged to this
defendant, who was in desperate need to satisfy his drug habit which resulted from
his initiation by the informer. He had every motive to testify falsely. 1 1

This case has stimulated a renewed discussion of two questions:
1. Is the Government justified in using informers or undercover

agents?
2. What is the sound philosophical basis for the plea of entrapment?

I. ANALYSIS OF POLICE METHODS AND THE USE OF INFORMANTS,
UNDERCOVER AGENTS AND PLAINCLOTHESMEN

Many laymen, and even some lawyers, are under the impression that
the way to abolish crime is to pass a law. This prevailing fallacy is illus-
trated by the enormous problem that police and federal agents encounter
in enforcing laws against narcotics, gambling and prostitution-to men-
tion only three. If these laws are to be enforced at all, the enforcement

9. In this respect, the case differs from Roviaro v. United States, 353 U.S. 53 (1956),
where the Government failed to produce the informer, and the Supreme Court, for this
reason, reversed the conviction. Cf. Carrow, Governmental Nondisclosure in Judicial Pro-
ceedings, Part Four, Information Obtained by Investigation. 141 N.Y.L.J. 4 (1959).

10. United States v. Silva, Criminal No. 157-201, S.D.N.Y., March 4, 1959, at 6-7.
11. Id. at 7.

[Vol. 28

DEFENSE OF ENTRAPMENT

agencies must resort to informers and undercover agents. The problem
is not solved by asserting that evidence so obtained comes from a pol-
luted source and must be proscribed.

It is safe to say that ninety-five per cent of all federal narcotics cases
are obtained as the result of the work of informers, whether they be paid
or not.’ Narcotics agents (who are well-trained and of a high calibre)
can uncover large syndicates selling narcotics only through iniormers and
undercover agents who can “tip them off” as to peddlers and pushers.
The latter, in turn, lead the agents to the wholesalers and importers.

It is impossible for a policeman or a narcotics agent, even though not
in uniform, to make contact with the underworld and make a “buy” with-
out using an informer or undercover agent as a decoy. A narcotics pusher,
retailer or wholesaler, without this kind of stratagem, would no more sell
to any one of the approximately 285 federal narcotics agents in this coun-
try than he would be foolish enough to sell directly to a police commis-
sioner. The federal experience has been that normal victims of narcotic
addiction are, by and large, a very poor class of people who can usually
be recognized as addicts. 13 An informer may pose as an addict or as a
dealer in narcotics. Federal narcotic arrests are generally based on an
original introduction by an informer to either a user or supplier and are
usually mad6 only after two or more sales. In the supplier cases, the
agent’s purpose is properly to endeavor to probe to the source of supply,
and not merely to arrest the one making the delivery.

In our larger cities, the same problem exists with respect to prostitu-
tion and gambling. Likewise, in racketeering and extortion cases, victims
do not complain. Indeed, all too frequently they plead the fifth amend-
ment and refuse to testify. In any event, it is difficult for a law enforce-

12. Substantial progress has been made in curtailing the illicit narcotic drug trade. The
United States Commissioner of Narcotics reports a decrease in the ratio of addiction from
1 in 400 in 1915 to 1 in 3,500 in 1959. Anslinger, The Treatment of Drug Addiction, 14
Food Drug Cosm. L.j. 240, 243-44 (1959). See also Senate Committee on the Judiciary, the
Illicit Narcotics Traffic, S. Rep. No. 1440, 84th Cong., 2d Sess. 3 (1956). “Narcotics
arrests in New York City alone have risen six hundred per cent in the past decade; arrests
of persons under twenty-one have increased 2,300 per cent … ?I Statement of then Gov-
ernor Averell Harriman (in 1956) as quoted in Henderson v. United States, 261 F.2d 909,
913 (5th Cir. 1959). In 1957, on the basis of statistics furnished by the Federal Bureau of
Narcotics, it was estimated that 40% of all the country’s addicts were located in New
York City. At that time, the New York City Police Derartment estimated that there were
over 21,000 drug users in New York City and that 401 were under 25 years of age. New
York Joint Legislative Committee on Narcotic Study, Second Interim Report 22-23 (N.Y.
Legislative Document No. 16, 1958). In 1957, there were 4,068 arrests for narcotic violations
in New York City, and only s arrests in Albany. New York Joint Legislative Committee on

Narcotic Study, Report 35 (N.Y. Legislative Document No. 7, 1959).
13. Cf. Wmick, Narcotics Addiction and Its Treatment, 22 Law & Contemp. Prob. 9

(1957).

19591

FORDHAM LAW REVIEW

ment officer, in or out of uniform and standing on a street corner, to
make an arrest for any of the crimes just enumerated. If the police force
in New York City were doubled, it would still be impossible in this way
to enforce the laws regarding narcotics, prostitution, gambling or racket-
eering effectively. Some other police method must be utilized if society is
to be protected. Accusing the prosecutor of being lazy in resorting to the
use of informers, undercover agents or plainclothesmen does not solve
the problem. This same method of using informers and special employees
is sometimes resorted to by other law enforcement agencies, including
the Federal Bureau of Investigation. 4 The Treasury Department, which
has jurisdiction over the Federal Bureau of Narcotics, uses undercover
agents as well as informers and so-called special employees.

One choice is between enforcement of those laws which inhibit conduct
other than crimes of violence, which are usually observable or the effects
of which are observable, and nonenforcement. The question may well
be posed whether with respect to some acts, such as prostitution and
gambling, society has gone too far in attempting to legislate them out of
existence by making them crimes. There are reputable advocates for
legalizing gambling and prostitution; and for years some prominent
medical and legal authorities have proposed a radically different method
of treating narcotic addiction. The answers to these questi6ns determine
in large measure opinions with respect to the defense of entrapment.
For example, one who opposed the classification of prostitution, gambling
and the possession of narcotics as crimes would be expected to support
the broadest definition of entrapment and thus permit its more frequent
invocation.

Another possible choice for those who would continue such criminal
statutes on our books is closer police surveillance as, for example, the
registration of all persons, arrests on suspicion, and other regulatory
methods of a police state. This alternative would commend itself to few
persons in this country, and certainly does not match the fabric of our
law.

There can be no doubt that there is a possibility of law enforcement
officers luring persons into the commission of offenses.”

Shall we permit this fact to destroy the entire system of enforcement?
Or is it not rather a task for judges and prosecutors to weed out un-

14. A recent and outstanding example of a situation where espionage might have re-
mained undetected, had it not been for the use of an informer working for more than ten
years with the FBI, is United States v. Soble, Criminal No. 152-90, S.D.N.Y., 1957.

15. See, e.g., Sherman v. United States, 356 U.S. 369 (1958) (narcotics); Sorrells v.
United States, 287 U.S. 435 (1932) (prohibition violation); Henderson v. United States,
261 F.2d 909 (5th Cir. 1958) (narcotics) ; Morales v. United States, 260 F.2d 939 (6th Cir.
1958) (narcotics) ; Guarro v. United States, 237 F.2d 578 (D.C. Cir. 1956) (sexual assault.;

[Vol. 28

1959] DEFENSE OF ENTRAPMENT

worthy cases and to refuse to prosecute, or to dismiss where such facts
appear?

II. WEAPONS IN THE HANDS OF THE PROSECUTOR
There are only so many weapons in the arsenal of the prosecutor. Yet

in the face of statistics, both state and federal, indicating a continuous
and general rise in the rate of crime, there is an increasing tendency to
take away or limit these weapons.

The most conspicuous example of this in the last twenty-five years
has been to deny the federal prosecutors the right to use wiretap evi-
dence.16 Not only is wiretap evidence barred in the federal courts when
obtained by federal law enforcement agents, but recently such evidence
has also been proscribed even where procured by state officers without
-the knowledge or concurrence of the federal prosecutor or any federal
agent.

17

Henderson v. United States, 237 F.2d 169 (5th Cir. 1956) (alcohol). See also Entrapment
to Commit Crime With View to Prosecution Therefor, Annot., 86 A.L.R. 263 (1933);
Entrapment to Commit Offense Against Laws Regulating Sales of Liquor, AnnoL, 55
A.L.R.2d 1322 (1957); Entrapment to Commit or Attempt Abortion, Annot., 53 A.L.R.2d
1156 (1956); Entrapment to Commit Sexual Offense, Annot., 52 A.L.R.2d 1194 (1957);
Entrapment to Commit Offense with Respect to Narcotics Law, Annot., 33 A.L.112d 8S3
(1954); Entrapment to Commit Offense with Respect to Gambling on Lotteries, Annot,
31 A.LR.2d 1212 (1953).

16. Federal Communications Act of 1934, 48 Stat. 1103, 47 U.S.C. § 605 (1952); Nar-
done v. United States, 302 U.S. 379 (1937); 305 U.S. 338 (1939); Brown and Peer, Wire-
tapping Entanglement: How to Strengthen Law Enforcement and Preserve Privacy, 44
Cornell L.Q. 175 (1959); Williams, Wiretapping Should Be Liberalized, 30 N.Y.S.B. Bull.
261 (1958). Cf. Note, Recent State Wiretap Statutes; Deficiencies of the Federal Com-
munications Act Corrected, 67 Yale L.J. 932 (1958).

17. “cThe common law rule … that the admissibility of evidence is not affected by the
illegality of the means by which it was obtained . . . ,” Olmstead v. United States, 277
U.S. 438, 467 (1928), does not control unconstitutional searches and seizures, wiretapping,
or involuntary confessions. Benanti v. United States, 355 U.S. 96 (1957). But Eee Walder
v. United States, 347 U.S. 67 (1953) (permitting use of illegally obtained evidence on
cross-examination to attack defendant’s credibility). In Benanti, the Court stated that:
“It has remained an open question in this Court whether evidence obtained solely by state
agents in an illegal search may be admissible in federal court despite the Fourth Amend-
ment…. The instant decision is not concerned with the scope of the Fourth Amendment.”
355 U.S. at 102, n.10. See also Rea v. United States, 350 U.S. 214, 218, 220 (1956) (dis-
senting opinion); Lustig v. United States, 338 U.S. 74, 79 (1949); Hanna v. United States,
260 F.2d 723 (D.C. Cir. 1958) (stolen money found immediately after Maryland police
made unlawful arrest evidence which should be excluded upon trial for larceny in federal
court as a matter of sound judicial policy since search violated fourteenth amendment);
Herrick, Evidence Obtained Pursuant to Illegal Arrests, Detentions and Searches, Prac.
Law. 53 (November 1959); Comment, 64 Harv. L. Rev. 1304 (1951).

It should be noted that in Weeks v. United States, 232 US. 383, 393 (1914), the Su-
preme Court asserted that since the fourth amendment does not apply to the states, evi-
dence illegally obtained by a state officer would be admissible in the federal courts. The

FORDHAM LAW REVIEW

It had been the practice of the Federal Bureau of Narcotics in many
cases not to reveal the names of informers in view of the fact that these
men were often asked to work in more than one investigation. Further-
more, as informers and witnesses, they had to be protected against re-
prisal. This practice was severely affected by the decision of the Supreme
Court in United States v. Roviaro.8

Finally, even where there has been a confession to the commission of
the crime, the confession may still not be used in evidence where it
is deemed extorted from the defendant prisoner, or obtained under

Court did not directly consider whether there was a violation of the fourteenth amend-
ment. Byars v. United States, 273 U.S. 28 (1927), and Lustig v. United States, 338 U.S. 74
(1949), held that the active participation of federal agents in an illegal state search renders
the evidence obtained inadmissible in a federal court. Gambino v. United States, 275 U.S.
310 (1927), extended Weeks to cases involving the cooperation of state officers acting
solely to enforce federal laws. Cf. United States v. Scotti, 102 F. Supp. 747 (E.D. Tex.

1950), aff’d, 193 F.2d 644 (5th Cir. 1952) (evidence admissible since state officers did not
act “solely” to aid in the enforcement of federal laws). Evidence illegally obtained by pri-
vate parties, Irvine v. California, 347 U.S. 128, 136 (1954); Burdeau v. McDowell, 256
U.S. 465 (1921); or by invasion of rights of third parties, United States v. Lefkowltz, 52
F.2d 52 (2d Cir. 1931), is admissible. Compare United States v. Block, 188 F.2d 1019 (D.C.
Cir. 1951). Cf. Comment, Judicial Control of Illegal Search and Seizure, 58 Yale L.J. 144,
154 (1948). In Wolf v. Colorado, 338 U.S. 25 (1949), the Court declared that the freedom
from unreasonable searches and seizures secured by the fourth amendment is implicit in the
“concept of ordered liberty” and applicable to the states through the due process clause

of the fourteenth amendment, but it held “in a prosecution in a State court for a State
crime the Fourteenth Amendment does not forbid the admission of evidence obtained by
an unreasonable search and seizure.” Id. at 33. See also Breithaupt v. Abram, 352 U.S.
432, 434 (1957); Irvine v. California, supra, at 134. Compare Frank v. Maryland,

359 U.S. 360, 371-373 (1959) (fourteenth amendment not violated by inspection of private
home without a warrant by city health inspector). Cf. Parsons, State-Federal Crossfire In
Search and Seizure and Self-Incrimination, 42 Cornell L.Q. 346, 362 (1957), suggesting that
federal courts should refuse to accept evidence illegally obtained by officers of states which
have adopted the rule of exclusion. The exclusionary rule as extended by the Hanna case,
of course, operates to regulate the conduct of state officials. Compare Stefanelli v. Minard,
342 US. 117, 120 (1951) (“We hold that the federal courts should refuse to intervene in
state criminal proceedings to suppress the use of evidence even when claimed to have been
secured by unlawful search and seizure.”) with Rea v. United States, 350 U.S. 214, 216-17
(1956) (federal agent who seized evidence under illegal federal warrant enjoined from
testifying in state case with respect to such evidence; the “case … raises not a constitu-

tional question but one concerning our supervisory powers over federal law enforcement
agencies.”).

18. 353 U.S. 63 (1956). Here the informer had testified before the grand jury and the
indictment was necessarily based in part on the evidence which he had given. Federal grand

juries now returning true bills or reporting “no true bill” are required to list the witnesses

who have appeared before them. The writer does not question either the desirability of this

rule or even the propriety of requiring the Government, at the trial, to reveal the names of

persons, present at the time of the alleged crime or otherwise in possession of facts relating
directly to the commission of the crime, which are known to the prosecuting authority but

not to the defense.

[Vol. 28

1959] DEFENSE OF ENTRAPMENT

such circumstances as where he is held without arraignment, questioned
for an unreasonable period of time and deprived of counsel.1 9 The Su-
preme Court’s recent decision in Mallory v. United States”° extends the
McNabb rule to the point where a confession obtained about twelve hours
after arrest and two or three hours of actual police questioning may be
excluded where the prisoner could have been more promptly arraigned
before a United States commissioner or district judge. In Mallory the
defendant was arraigned within twenty-four hours after arrest.

The district attorney is quite properly required to establish the de-
fendant’s guilt beyond a reasonable doubt. This must be done pursuant
to constitutional safeguards which require that the defendant is entitled
to be confronted by witnesses who testify against him.21

Traditionally, the prosecutor has been entitled to prove his case in
one or more of the following ways:

(1) By the direct testimony of witnesses;
(2) By documentary evidence;
(3) By wiretap evidence of telephone conversations;
(4) By the testimony of informers;
(5) By the testimony of co-conspirators;
(6) By confessions or otherwise incriminating statements; and
(7) By circumstantial evidence.

An examination of these categories in the light of cases which have

19. McNabb v. United States, 318 U.S. 332 (1943). See also Fikes v. Alabama, 352
U.S. 191 (1957). The Fikes case has been made famous by Mr. Justice Frankfurter’s refer-
ence to “the Plimsoll line of ‘due process.'” 352 U.S. at 199. His former law clerk has
pointed out that there are Plimsoll marks for summer, for winter, for salt water and for
fresh water. Field, Frankfurter, J., Concurring, 71 Harv. L. Rev. 77 (1957).

20. 354 U.S. 449 (1957). See also Spano v. New York, 360 US. 31; (1959), reversing
4 N.Y.2d 256, 150 N.E.2d 226 (1958). Cf. Comment, Pre-arraignment Interrogation and the
McNabb-Mallory Miasma: A Proposed Amendment to the Federal Rules of Criminal Pro-

cedure, 68 Yale LJ. 1003 (1959); Comment, The Law of Confessions As Affected by Supreme
Court Decisions, 27 Fordham L. Rev. 396 (1958). It is important to note that there cases
do not rest upon constitutional grounds but rather on a “judicial conception of wike

policy, aided by … [an] interpretation of what … [the Court] considered to be
Congressional policy.” Kauper, Supreme Court: Trends in Constitutional Interpretation, 24

F.R.D. 155, 173 (1959), Hence they do not control state practice. See Cicenia v. La Gay,
357 U.S. 504, 508-09 (1958). The due process clause of the fourteenth amendment, of
course, prohibits the use of coerced confessions in state prosecutions. Crooker v. California,
357 U.S. 433 (1958). See Cohn, Federal Constitutional Limitations on the Use of Coerced
Confessions in the State Courts, 50 J. Crim. L. 265 (1959). The Spano case suggests that it
will not be long before the Supreme Court holds that the fourteenth amendment renders

confessions inadmissible if elicited in the absence of counsel.
21. The sixth amendment to the United States Constitution reads in part: “In all

criminal prosecutions, the accused shall enjoy the right … to be confronted with the wit-

nesses against him . .. .”

FORDHAM LAW REVIEW

accorded fuller protection to constitutional or statutory rights indicates
that serious, though legitimate, curbs have been placed on the power of
the prosecutor to prove a person’s guilt. It suggests that while a greater
burden is being placed upon the law enforcement official to protect so-
ciety, fewer weapons are made available to him.22 Federal authorities
would be well advised to recommend congressional legislation validating
the use of wiretapping techniques under proper court controls, as are
now written into the law of the State of New York.23

An examination would also indicate that the practice of using in-
formers and undercover agents is one which ought to be continued, re-
lying, as is always true, on the fairness of the enforcement agencies and
the power of the courts to check any abuse of police power. The fact is
that rarely, if ever, are cases presented for indictment on the basis of
the testimony of informers alone. There is some kind of corroborating
testimony, either by government agents or other witnesses, for the very
practical reason that the judge or jury would be reluctant to convict
someone on the uncorroborated testimony of an informer, who may him-
self have a criminal record or a financial stake in the conviction.

III. DEVELOPMENT OF THE DOCTRINE OF ENTRAPMENT IN THE
SUPREME COURT

For many decades the defense of entrapment arose only where the
criminal nature of an act was vitiated by the consent of the injured party
or by a failure to prove one of the essential elements of the crime. Convic-
tions for criminal fraud cannot stand where the police are “victims,”
since they are not actually misled by fraudulent statements. 24 Like-
wise, where a man suspected that his house would be burglarized, and
opened the door to facilitate the defendant’s entrance, it was held that
due to the absence of any breaking and entering, there had, in fact,
been no burglary.2 Again, when a property owner suspected the de-
fendant of being a thief and solicited him to steal the owner’s goods, it
was ruled that no crime had been committed since there had not been a
taking against the will of the owner.

26

22. In a recent case decided by the New York Court of Appeals, People v. Dinan, 6
N.Y.2d 715, 158 N.E.2d 501, 185 N.Y.S.2d 806 (1959) (memorandum decision), affirming 7
App. Div. 119, 181 N.Y.S.2d 122 (2d Dep’t 1958), it was held that evidence obtained by a
court-ordered wiretap is admissible in a New York court and that the state policy of admit-
ting such evidence, even if illegally obtained, does not contravene the Federal Communica-
tions Act. Accord, State v. Voci, 393 Pa. 404, 143 A.2d 652 (1958).

23. N.Y. Const., art. I, § 12; N.Y. Code Crim. Proc. § 813-a.
24. People v. Schroeder, 132 Cal. App. 2d 1, 281 P.2d 297 (4th Dist. 1955).
25. Love v. People, 160 IM. 501, 43 N.E. 710 (1896).
26. People v. Frank, 176 Misc. 416, 27 N.Y.S.2d 227 (Utica City Ct., 1941).

[Vol. 28

1959] DEFENSE OF ENTRAPMENT 409

In the past, courts have varied as to the grounds upon which the de-
fense of entrapment should rest. Among these proposed have been that
the Government is estopped by the conduct of its agents;2 7 that the
Congress never intended to include in the category of crime defined by
a statute situations where the defendant was induced to commit the
crime by government agents; 2 and that sound public policy denies the
right of the Government, through its agents, to create crime for the pur-
pose of prosecuting an offender.29

Mr. Justice Frankfurter, concurring in the result but dissenting from
the rationale of the majority opinion in Sherman v. United States,” sug-
gests that the real test is not the intention of Congress or even the test
of the “creative activity” of the agent, but rather whether police conduct
falls below the standard for the proper exercise of governmental power.”‘

An analysis of the history of the cases before the Supreme Court with
respect to the emergence of these respective doctrines, would here be ap-
propriate.

Sorrells v. United States

In Sorrells v. United States,32″ the defendant was indicted and convicted
of a violation of the Prohibition Act.3 3 A man posing as a tourist called
at the defendant’s house with some other people. He twice requested the
defendant to procure liquor for him although the defendant stated that
he had none. It appeared that both the defendant and the agent were
war veterans who had served as members of the same regiment. After
an exchange of reminiscences, the agent again renewed his request for

27. United States v. Kaiser, 138 F.2d 219, 220 (7th Cir. 1943) (dictum). Only the
entrapped person may raise the defense. It is not available to a defendant where his
accomplice was the person entrapped. United States v. Perkins, 190 F.2d 49 (7th Cir.
1951). The entrapping person must be an agent or officer of the Government; inducement
by a private person does not make this defense available. Jindra v. United States, 69 F.2d
429, 431 (5th Cir. 1934) ; Polski v. United States, 33 F.2d 6S6 (8th Cir. 1929), cert. denied,
280 U.S. 591 (1929); Nevman v. United States, 28 F.2d 681, 682 (9th Cir. 1928) (dictum).
Courts have considered paid informers and those granted personal immunity as government
agents. Cratty v. United States, 163 F.2d 849 (D.C. Cir. 1947); Hayes v. United States, 112
F.2d 676 (10th Cir. 1940); Wall v. United States, 65 F.2d 993 (5th Cir. 1933). Cf. Mayer v.
United States, 67 F.2d 223 (9th Cir. 1933). Entrapment by a state officer is a valid defense
in the federal courts. Henderson v. United States, 237 F.2d 169 (5th Cir. 1956). See also
Note, Entrapment is a Valid Defense in Federal Courts When the Defendant has been
Entrapped by a State Officer, 45 Geo. L.J. 501 (1957); Note, Entrapment by State Officers
is a Defense to Federal Crime, 105 U. Pa. L. Rev. 753 (1957).

28. Sorrells v. United States, 287 U.S. 439, 44S-49 (1932).
29. United States v. Becker, 62 F.2d 1007, 1009 (2d Cir. 1933).
30. 356 U.S. 369 (1958).
31. ‘Id. at 382.
32. 287 U.S. 435 (1932).
33. National Prohibition Act, ch. 85, § 1, 41 Stat. 305 (1919).

FORDHAM LAW REVIEW

liquor. The defendant left his house, returning shortly afterward with
liquor which was sold to the agent.

Evidence of the defendant’s good character was introduced. In re-
buttal, the Government offered testimony that the defendant had a
reputation of being a “rumrunner.” There was no evidence introduced,
however, that the defendant had previously violated the liquor laws of
the United States. The trial court submitted the issue of entrapment,
which was pleaded, to the jury, having ruled that the evidence was not
so convincing that the court must hold that as a matter of law there was
entrapment.

Chief Justice Hughes, speaking for a majority of five members of the
Court, held that the evidence of entrapment was sufficient to warrant
consideration by the jury. He declared that the sale of liquor induced by
methods amounting to entrapment was not, in fact, a crime within the
intent of Congress.3 4 In other words, under this interpretation of the law
no crime was actually committed. This was not a case of a crime having
been committed and a defense of entrapment upheld because the con-
duct of the government agents did not measure up to the required
standards of fair dealing.

The majority of the Court held that “the predisposition and criminal
design of the defendant are relevant,” and the controlling question is
“whether the defendant is a person otherwise innocent whom the Gov-
ernment is seeking to punish for an alleged offense which is the product
of the creative activity of its own officials.””5

Under the rule of the majority here, there are two principal considera-
tions: police misconduct on the one hand, and the character of the de-
fendant on the other. Both police misconduct and the initial innocence
of the defendant must be proved in order to establish the defense of
entrapment. Mr. Justice Roberts, in his concurring opinion, sharply dis-
agreed with the majority in his definition of the defense:

Entrapment is the conception and planning of an offense by an officer, and his
procurement of its commission by one who would not have perpetrated it except for
the trickery, persuasion, or fraud of the officer.

30

34. 287 U.S. at 448.
35. Id. at 451. The Court also observed that the defense is established “when the

criminal design originates with the officials of the Government, and they implant in the
mind of an innocent person the disposition to commit the alleged offense and induce Its
commission in order that they may prosecute.” Id. at 442.

36. 287 U.S. at 454. Compare Stein v. United States, 263 F.2d 579, 581 (9th Cir. 1959):
“The law is well settled that if all the Government agents or their agents do is to take
advantage of the defendant’s predisposition and willingness it does not amount to entrap-
ment.”

[Vol. 28

DEFENSE OF ENTRAPMENT

The fairness of any rule of law which permits the Government to
counteract the defense of entrapment by proof of the history and past
evil life of the defendant may well be questioned. Such proof tendered
by the Government is wholly irrelevant to the issue of whether de-
fendant committed the crime in issue. To allow the Government to offer
proof of defendant’s character, especially where the defendant may not
even have taken the stand, gives the defendant the right to plead entrap-
ment only at his peril and is inconsistent with those safeguards which
courts have invoked to insure a fair trial.3 7

Sherman v. United States

The Supreme Court next dealt with the question of entrapment some
twenty-six years later in Sherman v. United States.as Here it was held
that on the basis of undisputed testimony by government witnesses, en-
trapment was established as a matter of law. The Court expressly refused
to reassess the doctrine of entrapment, to decide the case on the ground
urged by the minority opinion in Sorrells that the Government should
not be allowed to reply to a claim of entrapment by showing that the
defendant’s criminal conduct was due to his own readiness, or to deter-
mine whether “the factual issue of entrapment” should be decided by the
judge and not the jury. Again the Court divided five to four.

The defendant had been charged with three sales of narcotics. A pre-
vious conviction had been reversed because of improper instructions as
to the issue of entrapment.

In August 1951, a government informer met the defendant at a doctor’s
office where, apparently, both men were being treated for narcotics addic-
tion. After several accidental meetings, either at the doctor’s office or at
a pharmacy, their conversations progressed to a discussion of mutual
experiences and problems. Finally, the informer asked the defendant if
he knew of a good source of narcotics. From the first, the defendant tried
to avoid the subject, but after a number of repeated entreaties predicated
on the informer’s presumed suffering, the defendant acquiesced. Several
times thereafter he obtained a quantity of narcotics which was shared
with the informer. Each time the defendant told the informer that the
total cost of the narcotics was $25 and that the informer owed him $15.
The informer bore the cost of his share of the narcotics, plus other ex-
penses necessary to obtain the drug. The informer apparently also in-
duced the defendant to return to the habit. After several such sales, the
informer reported to agents of the Bureau of Narcotics that he had

37. As to whether raising the defense of entrapment admits commission of the criminal
acts, see Note, 70 Harv. L. Rev. 1302 (1957).

38. 356 U.S. 369 (1958), reversing 240 F.2d 949 (2d Cir. 1957).

1959]

FORDHAM LAW REVIEW

another seller, and on three occasions government agents observed the
defendant giving narcotics to the informer in return for money supplied
by the Government.

At the trial, the issue was whether the informer had convinced an other-
wise unwilling person to commit a criminal act, or whether the defendant
was already predisposed to commit the act. The question of entrapment
was allowed to go to the jury and a conviction resulted. The Court of
Appeals for the Second Circuit affirmed. 9 The Supreme Court reversed.

Chief Justice Warren, speaking for the Court, declared that Congress
could not have intended that its statutes be enforced by tempting innocent
persons into violations:
[T]he fact that government agents ‘merely afford opportunities or facilities
for the commission of the offense does not’ constitute entrapment. Entrapment
occurs only when the criminal conduct was “the product of the creative activity” of
law-enforcement officials …. To determine whether entrapment has been established
a line must be drawn between the trap for the unwary innocent and the trap for
the unwary criminal.

40

Referring to the Sorrells case, the Chief Justice indicated that at a
trial the accused may examine the conduct of the government agent and
that the accused would himself be subjected to an “appropriate and
searching inquiry into his own conduct and predisposition” as bearing
on his claim of innocence.4 1

The Government sought to counter the defense of entrapment in the
Sherman case by claiming that the defendant evidenced a “ready com-
plaisance” to accede to the informer’s request. It offered a record of two
prior convictions, one in 1942 and one in 1946, for the illegal sale of
narcotics and the illegal possession of narcotics respectively. The Court,
however, did not find that the nine-year-old conviction for selling and the
five-year-old conviction for possession were sufficient to prove that the
defendant was ready and willing to sell narcotics at the time the informer
approached him, especially where it appeared he was trying to overcome
the narcotics habit.42

Although he refused to decide an issue “not presented by the parties,”
Chief Justice Warren seems to have rejected the contention of Mr. Justice
Roberts that the Government should not be permitted to reply to the
defense of entrapment by showing that the defendant’s criminal con-
duct was due to his own readiness and not to the persuasion of govern-

39. 240 F.2d 949 (2d Cir. 1957).
40. 356 U.S. at 372. (Italics supplied.)
41. Cf. 287 U.S. at 451.
42. In Accardi v. United States, 257 F.2d 168, 171 (5th Cir. 1958), the court construed

the rationale of the Sherman case as throwing “the main emphasis on the ‘predisposition’
of the accused to commit the crime.”

[Vol. 28

1959] DEFENSE OF ENTRAPMENT

ment agents. The Court also refused to decide whether the factual issue
of entrapment should be decided by the judge and not the jury, but
stated that the federal courts of appeals since Sorrclls have unanimously
concluded that “unless it can be decided as a matter of law, the issue of
whether a defendant has been entrapped is for the jury as part of its
function of determining the guilt or innocence of the accused.””3

Mr. Justice Frankfurter concurred in the result in a separate opinion
which was supported by Justices Douglas, Harlan and Brennan. He
pointed out that the basis of the defense of entrapment is as much in
doubt today as it was when first recognized over forty years ago. Frank-
furter criticized the majority for failing to give the doctrine of entrapment
the solid foundation it needed.44 He thus delineated the rationale of this
doctrine:

The courts refuse to convict an entrapped defendant, not because his conduct falls
outside the proscription of the statute, but because, even if his guilt be admitted, the
methods employed on behalf of the Government to bring about conviction cannot be
countenanced.45

The minority opinion also urged that in the wise administration of
criminal justice, the court should pass on the issue of entrapment, and not
the jury. It pointed out that a jury verdict “cannot give significant
guidance for official conduct for the future,” and that “‘it is the province
of the court and of the court alone to protect itself and the government
from such prostitution of the criminal law.’ “”

Masciale v. United States

In a companion case to the Shernwn decision, Masciak v. United
States,47 the Court dealt again with the issue of entrapment but arrived
this time at a contrary result.

43. 356 U.S. at 377.
44. “It is surely sheer fiction to suggest that a conviction cannot be had when a de-

fendant has been entrapped by government officers or informers because ‘Congress could

not have intended that its statutes were to be enforced by tempting innocent persons into
violations.'” Id. at 379.

45. Id. at 380. Mr. Justice Frankfurter continued: “The crucial question, not easy of
answer, to which the court must direct itself is whether the police conduct revealed in the
particular case falls below standards, to which common feelings respond, for the proper use
of governmental power. … [I]t is wholly irrelevant to ask if the ‘intention’ to commit
the crime originated with the defendant or government officers, or if the criminal conduct
was the product of ‘the creative activity’ of law-enforcement officials.” Ibid.

46. Id. at 385.
47. 356 U.S. 386 (1958). The defendant was introduced to a narcotics agent by a gov-

ernment informer. The agent pretended to be a big narcotics buyer, and immediately made
it clear that he wanted to talk about buying large quantities of high grade narcotics. Instead
of leaving, the defendant questioned the agent on his knowledge of the narcotics traffic;

boasted that while primarily a gambler, he knew someone whom he considered prominent
in the narcotics traffic, and from whom he might get 88% pure heroin.

FORDHAM LAW REVIEW

The defendant here was convicted on three counts of the illegal sale of
narcotics and conspiracy. The defense of entrapment had been submitted
to the jury and a conviction resulted.

The majority of the Court held that while there was enough evidence,
if believed, to establish the defense of entrapment, there was no entrap-
ment as a matter of law. The issue was thus properly submitted to the
jury, which was entitled to disbelieve the defendant and find against him
on the issue of guilt. The majority again declined to consider whether
the issue of entrapment should have been determined by the trial judge
since it had not been raised by the parties.4 8 While the minority seemed
to agree on the result obtained below, they dissented again solely on the
ground that the trial court itself should have ruled on the issue of entrap-
ment and not left it to the determination of the jury.

The Sherman and Masciale cases thus represent the latest word of the
Supreme Court on the issue of entrapment, and demonstrate that the
majority of the Court still adheres to the now somewhat frayed doctrines
enunciated twenty-seven years ago in Sorrells.40

Still left unsettled, however, is what constitutes the basis of the defense
of entrapment, and whether this defense may properly be submitted to
a jury or should be decided by the court.

As the law now stands, it is still apparent that the Government can
introduce into evidence, by way of meeting the issue of entrapment, the

The defendant in his trial testimony admitted that he was a gambler; that he told the
agent that because of his gambling contacts he knew about the narcotics traffic. However,
he denied that he then knew any available source of narcotics or said that he could obtain
narcotics. The Court, in an opinion by Chief Justice Warren, pointed out that nowhere in
his testimony did the defendant state that either the narcotics agent or the informer tried
to persuade him to enter the narcotics traffic during their conversations. There were ten
conversations between the defendant and the narcotics agent in the six weeks following
their introduction, and the defendant repeatedly told the agent that he was trying to make
contact with the source. Finally, the defendant did introduce the agent to a man who sold
heroin to the agent the next day. The defendant argued that the informer had engaged in
a campaign to persuade him to sell narcotics by using the lure of easy money, and argued
that this undisputed testimony explained why he was willing to deal with the agent.

48. 356 U.S. at 389 n.5. But see Sherman v. United States, 356 U.S. 369, 379 n.2 (1958)
(dissenting opinion suggesting that the proper cause is to set the matter down for reargu-
ment).

49. It may not be out of place to note the recent comment of Professor Kauper of the
University of Michigan Law School that the recent trend of the Supreme Court decisions
“has considerably modified the historic relationship of judge and jury as it developed
at the common law” and that “it seems safe to say that the court is exalting the jury’s
function at the expense of judicial functions that were recognized at the common law.”
Kauper, Supreme Court: Trends In Constitutional Interpretation, 24 F.R.D. 155, 170-71
(1959). See also Hart, Foreword: The Time Chart of the Justices, The Supreme Court,
1958 Term, 73 Harv. L. Rev. 84, 98-99 (1959).

[Vol. 28

DEFENSE OF ENTRAPMENT

defendant’s past history, record and predisposition to commit the crime
charged, however unsavory or unfair this may be.

Mr. Justice Frankfurter has strongly argued that this is unjust and
irrelevant to the issue of whether the crime charged against the defendant
was actually committed 0 He has indicated the danger in such a situa-
tion, particularly where the issue of entrapment has to be submitted to
a jury. The defendant either has to forego the defense of entrapment or
else run the risk of substantial prejudice because of the introduction of
his prior criminal record or bad reputation.

IV. AMERICAN LAW INSTITUTE RECOMMENDATIONS

At a meeting of the American Law Institute on May 21, 1959, the two
alternative principles of the law of entrapment were submitted for con-
sideration in connection with Section 2.10 of the Proposed Model Penal
Code. The Council had recommended the adoption of the so-called
majority view expounded in Sorrells and Sherman which encompasses not
only the character of the police inducement but also the predisposition
of the actor, thus putting his character in issue.

This proposed section, as recommended by the Council, would read as
follows:

(1) A public law enforcement official or a person acting in cooperation vith
such an official perpetrates an entrapment if for the purpose of obtaining evidence of
the commission of an offense he solicits, encourages or othervise induces another
person to engage in conduct constituting such offense when he is not then other-
wise disposed to do so.

The Annual Meeting of the Institute rejected this view, however, and
adopted instead an alternative formulation of subsection (1) which
represents the minority view expressed in Sorrells and Sherman:

(1) A public law enforcement official or a person acting in cooperation Vith such
an official perpetrates an entrapment if for the purpose of obtaining evidence of the
commission of an offense, he solicits or encourages another person to engage in con-
duct constituting such offense by either:

(a) making knowingly false representations designed to induce the belief that
such conduct is not prohibited; or

(b) employing methods of persuasion or inducement which create a substan-
tial risk that such an offense will be committed by persons other than those who
are ready to commit it.

It must be assumed that the Institute intended to set up an objective,
rather than a subjective, standard in using the clause “methods of per-
suasion or inducement which create a substantial risk that such an offense
will be committed by persons other than those who are ready to commit
it.” Otherwise, the Government might well introduce evidence of de-

50. 356 U.S. at 382 (dissenting opinion).

1959]

FORDHAM LAW REVIEW

fendant’s character and criminal record to show he was “ready to commit
it.” One is justified, moreover, in making this assumption when this lan-
guage is compared with the clearly subjective standard embodied in the
phrase, “where he is not then otherwise disposed to do so,” found in the
rejected subsection.

By an even closer vote, the Institute adopted subsection (2) which
provided for trial of the issue of entrapment by the court in the absence of
the jury.” Subsections (2) and (3) read as follows:

(2) Except as provided in paragraph (3) of this Section, a person prosecuted
for an offense shall be acquitted if he proves that his conduct occurred in response
to an entrapment. The issue of entrapment shall be tried by the court in the absence
of the jury.

(3) The defense afforded by this Section is unavailable in a prosecution for a
crime involving conduct causing or threatening bodily injury to a person other than
the person perpetrating the entrapment.

5 2

This would seem to give rise to some important questions. Does the
determination of the issue of entrapment involve the inherent power of the
court to control the administration of justice and protect the integrity of
the judicial process and, therefore, should be left solely to the court for
determination? Or is it more desirable to say that the issue of entrapment
is rather to be compared to the issue of the voluntariness of a confession
or incriminating statement which, as a question of admissibility, is passed
upon by the court in the first instance, but left to the jury when there is
a fair issue of fact.53 If this be the distinction, the issue of entrapment
should be decided with finality by the court, and counsel may not argue

51. At the Annual Meeting of the American Law Institute (1959) the argument was
made in opposition to the adoption to subsection (2) that the proper administration of
criminal justice is better served by letting the issue go to the jury, thereby obviating the
delay necessitated by a trial within a trial.

52. In view of the devastating physical effects resulting from narcotic addiction, this
language may not achieve the purposes underlying the adoption of the section, one of
which is to facilitate the plea of entrapment in narcotic cases.

53. When an objection is made by counsel to the admission of a confession or in-
criminating statement, the only issue the court is called upon to decide is the admissibility
of the statement into evidence. In such cases it would seem fair to allow the court to “cast
the die against the prosecution but not the accused.” Cf. Stein v. New York, 346 U.S. 156,
172 (1953). See also Sacher v. United States, 343 U.S. 1, 8 (1952). A court should reject a
confession because involuntary either where the evidence of coercion is uncontradicted and
believable, or if it would be against the weight of evidence for a jury to find that it was
voluntary. Stein v. New York, 346 U.S. 156 (1953) ; People v. Leyra, 302 N.Y. 353 (1951).
If there be a fair issue of fact, the jury, under proper instructions, should ultimately de-
termine the issue of voluntariness. Stein v. New York, supra; People v. Leyra, supra.
See also People v. Weiner, 248 N.Y. 118 (1928). If the confession is admissible because
the evidence is insufficient to raise an issue as to voluntariness, then only the question of
its weight is for the jury. People v. Meyer, 162 N.Y. 357 (1900).

[Vol. 28

DEFENSE OF ENTRAPMENT

entrapment to the jury thereafter. If it is only a question of the ad-
missibility of evidence, then the court may, in the first instance, admit
the evidence but reserve to the jury the ultimate determination of the
weight to be attached to such evidence.

If the court is called upon to decide the issue, does not this require
something in the nature of a preliminary trial or a trial within a trial
from which the jury must be excused?54 Concededly, the minority rule
here seems to vest more power in the judiciary than when the issue is left
to the jury to handle in a general verdict. Historically, American judges
have not enjoyed or exercised some of the prerogatives of their English
cousins. They are far more circumspect in commenting on the weight
and credibility of evidence. This is true even in the federal courts
where such comments in the course of a trial or in the charge to the jury
are not prohibitedY0 However, the courts have traditionally handled fact
problems when deciding questions of jurisdiction or contempt, or ex-
cluding evidence illegally obtained, or when assessing the weight of
evidence as a matter of law. It would seem that entrapment fits into a
similar pattern. Are not judges more or less inclined to control dispas-
sionately the exercise of police power than the average citizen sitting on
a jury?

More consonant with the sound liberal tradition of the Supreme Court,
and a closer approximation of fairness in dealing with defendants accused
of crimes where some kind of solicitation is involved, would seem to be
the doctrine advanced by the minority in the Slwrnmun case.

CONCLUSION

To sum up, it would seem appropriate for the Supreme Court to re-
appraise the defense of entrapment and to conclude, as did the majority
of the members of the American Law Institute, that the objective stand-
ard is a sounder basis for the doctrine, and that its application is for the
court rather than for the jury. The determination of the issue of entrap-
ment involves the inherent power of the courts to supervise the admin-
istration of justice and should be decided by the court and not left to
the juryY The test should not be that of the supposed intention of Con-

54. Juries are excused in the federal courts. United States v. Carignan, 342 U.S. 36, 38
(1951). Apparently they may not be in New York. See People v. Raudazzlo, 194 N.Y. 147,
159 (1909).

55. See, e.g., Luercia v. United States, 289 U.S. 466 (1933); Henon v. Southern Pac.
Co., 283 U.S. 91, 95 (1931). See also Johnson v. United States, 333 U.S. 46, 54 (1948)
(dissent); Bihn v. United States, 328 U.S. 633, 637 (1946); Bollenback v. United States,
326 U.S. 607, 612 (1946); Glasser v. United States, 315 US. 60, 82-83 (1942). Cf. United
States v. Philadelphia & R.R.R., 123 U.S. 113, 114 (1887).

56. Comment, Entrapment by Federal Officers, 33 N.Y.U.L. Rev. 1033, 1040 (1958). A

1959]

FORDHAM LAW REVIEW

gress or of the creative activity of the agent, but whether police conduct
falls below the proper standard for the exercise of Governmental power.Y

This itself, of course, is not an absolute standard or one susceptible of
easy definition. It must necessarily differ in each case. What is quite
clear is that while the use of government informers is not improper, nor
is it improper for government agents to practice deceit and pretense in
affording an opportunity for the commission of crime, the ultimate goal
of the permitted police activity is only to reveal criminal design, and not
to employ “methods of persuasion or inducement which create a sub-
stantial risk that such an offense will be committed by persons other
than those who are ready to commit it.””as

Undue and repeated inducement, based on sympathy or greed, or the
defendant’s need, such as planting an informer in a doctor’s office to lure
persons seeking to overcome narcotic addiction into criminal activity,
should be forbidden since it does not satisfy the standards of fair and
decent police conduct.

contrary view is expressed in Comment, Entrapment Reexamined by United States Supreme
Court, 26 Wash. & Lee L. Rev. 72 (1959), which suggests that the sounder and orthodox
rule is that where the evidence on the question of entrapment is in conflict, it presents an
issue of fact for the jury on proper instructions. Under this view, of course, when there is
no genuine issue of fact the defense is treated as a matter of law. Sherman v. United States,
356 U.S. 369, 377 (1958) ; United States v. Place, 263 F.2d 627, 629 (2d Cir. 1959).

57. Cf. Sherman v. United States, 356 U.S. 369, 382 (1958) (Frankfurter, J,, dissenting).
See also Mr. Justice Roberts in SorreIls v. United States, 287 U.S. at 457: “[Tlhe preserva-
tion of the purity of its own temple belongs only to the court.” Miller v. United States,
357 U.S. 301, 313 (1959): “We are duly mindful of the reliance that society must place for
achieving law and order upon the enforcing agencies of the criminal law. But insistence
on observance by law officers of traditional fair procedural requirements is, from the long
point of view, best calculated to contribute to that end.” Sherman v. United States, 356
U.S. 369, 380 (1958) (Frankfurter, J., dissenting): “Public confidence in the fair and
honorable administration of justice, upon which ultimately depends the rule of law, is the
transcending value at stake.” Olmstead v. United States, 277 U.S. 438, 469-70 (1928)
(Holmes, J., dissenting): “[A]part from the Constitution the Government ought not
to use evidence obtained and only obtainable by a criminal act. . . . I think it a less evil
that some criminals should escape than that the Government should play an ignoble part.”
Casey v. United States, 276 U.S. 413, 423-25 (1928) (Brandeis, J., dissenting): “The
Government may set decoys to entrap criminals. But it may not provoke or create
a crime and then punish the criminal, its creature. . . . This prosecution [of an attorney
suspected of delivering narcotics by soaking towels in a solution of the drug to jailed
clients and trapped into making a sale to a “stool pigeon”] should be stopped . . . in order
to protect the Government. To protect it from illegal conduct of its officers. To preserve
the purity of its courts.”

58. Model Penal Code, art. II, § 2.10 (Tent. Draft No. 9, 1959).

  • The Defense of Entrapment and Related Problems in Cirminal Prosecution
    • Recommended Citation
  • The Defense of Entrapment and Related Problems in Cirminal Prosecution
    • Cover Page Footnote
  • tmp.1306461964.pdf.6739d

LII > Wex > Exclusionary Rule

Exclusionary Rule

Overview

The exclusionary rule prevents the government from using most evidence gathered in
violation of the United States Constitution. The decision in Mapp v. Ohio established
that the exclusionary rule applies to evidence gained from an unreasonable search or
seizure in violation of the Fourth Amendment. The decision in Miranda v.
Arizona established that the exclusionary rule applies to improperly elicited self-
incriminatory statements gathered in violation of the Fifth Amendment, and to
evidence gained in situations where the government violated the defendant’s Sixth
Amendment right to counsel. However, the rule does not apply in civil cases,
including deportation hearings. See INS v. Lopez-Mendoza.

Derivatives of Excluded Evidence

If evidence that falls within the scope of the exclusionary rule led law enforcement to
other evidence, which they would not otherwise have located, then the exclusionary
rule applies to the newly discovered evidence, subject to a few exceptions. The
secondarily excluded evidence is called “fruit of the poisonous tree.”

Though the rationale behind the exclusionary rule is based in constitutional rights,
it is a court-created remedy and deterrent, not an independent constitutional right.
The purpose of the rule is to deter law enforcement officers from conducting
searches or seizures in violation of the Fourth Amendment and to provide remedies to
defendants whose rights have been infringed. Courts have also carved out several
exceptions to the exclusionary rule where the costs of exclusion outweigh its
deterrent or remedial benefits. For example, the good-faith exception, below, does
not trigger the rule because excluding the evidence would not deter police officers
from violating the law in the future.

Exceptions

Good Faith Exception

Free Free

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Under the good-faith exception, evidence is not excluded if it is obtained by officers
who reasonably rely on a search warrant that turns out to be invalid. See Arizona v.
Evans. Also, in Davis v. U.S., the U.S. Supreme Court ruled that the exclusionary rule
does not apply when the police conduct a search in reliance on binding appellate
precedent allowing the search. Under Illinois v. Krull, evidence may be admissible if
the officers rely on a statute that is later invalidated. In Herring v. U.S., the Court
found that the good-faith exception to the exclusionary rule applies when police
employees erred in maintaining records in a warrant database.

Independent Source Doctrine

Evidence initially obtained during an unlawful search or seizure may later
be admissible if the evidence is later 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. Additionally, some courts recognize
an “expanded” doctrine, in which a partially tainted warrant is upheld if, after
excluding the tainted information that lead to its issuance, the remaining untainted
information establishes probable cause sufficient to justify its issuance. See, for
example, the South Dakota Supreme Court decision in State v. Boll.

Inevitable Discovery Doctrine

Related to the independent source doctrine, above, and also adopted in Nix v.
Williams, the inevitable discovery doctrine allows admission of evidence that was
discovered in an unlawful search or seizure if it would have be discovered in the same
condition anyway, by an independent line of investigation that was already being
pursued when the unlawful search or seizure occurred.

Attenuation Doctrine

In cases where the relationship between the evidence challenged and the
unconstitutional conduct is too remote and attenuated, the evidence may
be admissible. See Utah v. Strieff. Brown v. Illinois, cited in Strieff, articulated three
factors for the courts to consider when determining attenuation: temporal proximity,
the presence of intervening circumstances, and the purpose and flagrancy of the
official misconduct.

Evidence Admissible for Impeachment

The exclusionary rule does not prevent the government from introducing illegally
gathered evidence to “impeach,” or attack the credibility of, defendants’ testimony at
trial. The Supreme Court recognized this exception in Harris v. New York as a truth-
testing device to prevent perjury. Even when the government suspects perjury,
however, it may only use tainted evidence for impeachment, and may not use it to
show guilt.

Qualified Immunity

Free Free

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Due to qualified immunity, the exclusionary rule is often a defendant’s only remedy
when police officers conduct an unreasonable search or violate their Miranda rights.
Even if officers violate a defendant’s constitutional or statutory rights, qualified
immunity protects the officers from a lawsuit unless no reasonable officer would
believe that the officers’ conduct was legal.

Last updated in June of 2017 by Stephanie Jurkowski.

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‹ 644. Insanity—Criminal Division Contacts up 646. Recent Entrapment Cases ›

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645. ENTRAPMENT—ELEMENTS

Entrapment is a complete defense to a criminal charge, on the theory that “Government agents may not originate a
criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce
commission of the crime so that the Government may prosecute.” Jacobson v. United States, 503 U.S. 540, 548 (1992).
A valid entrapment defense has two related elements: (1) government inducement of the crime, and (2) the defendant’s
lack of predisposition to engage in the criminal conduct. Mathews v. United States, 485 U.S. 58, 63 (1988). Of the two
elements, predisposition is by far the more important.

Inducement is the threshold issue in the entrapment defense. Mere solicitation to commit a crime is not inducement.
Sorrells v. United States, 287 U.S. 435, 451 (1932). Nor does the government’s use of artifice, stratagem, pretense, or
deceit establish inducement. Id. at 441. Rather, inducement requires a showing of at least persuasion or mild coercion,
United States v. Nations, 764 F.2d 1073, 1080 (5th Cir. 1985); pleas based on need, sympathy, or friendship, ibid.; or
extraordinary promises of the sort “that would blind the ordinary person to his legal duties,” United States v. Evans, 924
F.2d 714, 717 (7th Cir. 1991). See also United States v. Kelly, 748 F.2d 691, 698 (D.C. Cir. 1984) (inducement shown
only if government’s behavior was such that “a law-abiding citizen’s will to obey the law could have been overborne”);
United States v. Johnson, 872 F.2d 612, 620 (5th Cir. 1989) (inducement shown if government created “a substantial
risk that an offense would be committed by a person other than one ready to commit it”).

Even if inducement has been shown, a finding of predisposition is fatal to an entrapment defense. The predisposition
inquiry focuses upon whether the defendant “was an unwary innocent or, instead, an unwary criminal who readily
availed himself of the opportunity to perpetrate the crime.” Mathews, 485 U.S. at 63. Thus, predisposition should not be
confused with intent or mens rea: a person may have the requisite intent to commit the crime, yet be entrapped. Also,
predisposition may exist even in the absence of prior criminal involvement: “the ready commission of the criminal act,”
such as where a defendant promptly accepts an undercover agent’s offer of an opportunity to buy or sell drugs, may
itself establish predisposition. Jacobson, 503 U.S. at 550.

[cited in JM 9-18.000]

Updated January 22, 2020

Forensic Tools: What’s Reliable and What’s Not-So-Scientific
Share:

For years, American TV shows have featured crime scene investigators using forensic evidence to solve grim mur-

ders. Often, however, these fictional CSIs present unrealistic portrayals of the capabilities of forensic science.

The reality is that not all forensic evidence is backed up by rigorous scientific research – meaning it doesn’t al-

ways point to the person who “did it.” A landmark 2009 study by the National Academy of Sciences

(http://www.nap.edu/catalog.php?record_id=12589) (NAS) highlighted the tools that work – and those that fall

short. Here’s a sampling of the basics:

DNA Analysis is the Gold Standard

In 1984, a British geneticist named Alec Jeffreys stumbled upon one of our most important forensic tools

(http://news.bbc.co.uk/2/hi/programmes/newsnight/8245312.stm): DNA fingerprinting. Since his “eureka mo-

ment,” the scientific technique has been used successfully to identify perpetrators of a crime, clarify paternity

and exonerate people wrongly convicted.

A P R I L 1 7, 2 0 1 2

by Jonathan Jones (https://www.pbs.org/wgbh/frontline/person/jonathan-jones/)•

M E N U
(http://www.pba.org/)

Today, the testing and analysis of DNA is considered the most reliable of all of the forensic tools. Unlike many of

the others gathered to meet the needs of law enforcement, it faced rigorous scientific experimentation and vali-

dation prior to its use in forensic science.

“Among the biggest problems that we uncovered in the report is the absence of the application of scientific

methodology to determine whether or not the discipline was valid and reliable as was done with DNA,” says

Harry T. Edwards (/wgbh/pages/frontline/criminal-justice/real-csi/judge-harry-t-edwards-how-reliable-is-foren-

sic-evidence-in-court/), a U.S. federal judge and part of the NAS committee that produced that 2009 report.

“DNA is really the only discipline among the forensic disciplines that consistently produces results that you can

rely on with a fair level of confidence, when you’re seeking to determine whether or not a piece of evidence is

connected with a particular source.”

In fact, DNA has actually called into question the reliability of other forensic sciences, says Innocence Project co-

founder Peter Neufeld.

“When we looked at all the cases of people who have been exonerated by DNA evidence

(http://www.innocenceproject.org/know/), we found that in 60 percent of those cases, experts who testified for

the prosecution produced either invalid evidence or the misapplication of science in their testimony.”

Fingerprints Can Lie

For more than a century, fingerprints, palm prints and sole prints have been used as identification tools by law

enforcement. Collectively known as “friction ridge analysis,” this forensic method involves examiners comparing

the details of an unknown print with a set or a database of known prints. These details include ridges, loops,

whorls and other points of similarities.

Criminologists and law enforcement officials long swore that fingerprint identification was infallible and that it

was possible for an examiner to determine that a print comes from a single unambiguous source. If an examiner

has a whole, perfect print, they argued, identifications can be made with reliability.

But recent errors have fueled a debate about the reliability of fingerprint forensic evidence, the most prominent

being the case of Oregon lawyer Brandon Mayfield. After the March 2004 terrorist bombings in Madrid that

killed almost 200 people, a partial print found on a bag of detonators was sent to the FBI. An examiner deter-

mined that the print belonged to Mayfield, who was later detained. In total, four fingerprint examiners – includ-

ing one hired by Mayfield’s defense team – declared that his print matched the partial from Spain.

M E N U

Except there was a problem (http://www.nytimes.com/2004/05/25/us/bomb-case-against-lawyer-is-

rejected.html?ref=brandonmayfield): the print wasn’t Mayfield’s at all. Spanish officials matched the partial print

to an Algerian man named Daoud Ouhnane. Mayfield later sued the government, which settled for $2 million

(http://www.washingtonpost.com/wp-dyn/content/article/2006/11/29/AR2006112901179.html).

“I knew that our profession had taken some sort of a quantum leap because suddenly there were new rules in-

volved,” veteran fingerprint examiner Ken Moses told FRONTLINE. Moses was one of the four people who incor-

rectly matched Mayfield to the latent print.

According to the National Academies of Sciences, no peer reviewed scientific studies have ever been done to

prove the basic assumption that every person’s fingerprint is unique. Recent studies have also shown that finger-

print examiners can be influenced by contextual bias (/wgbh/pages/frontline/criminal-justice/real-csi/can-uncon-

scious-bias-undermine-fingerprint-analysis/) when comparing fingerprints.

“Prior to Mayfield, there were some people in the fingerprint community who really were saying that something

like Mayfield could never happen,” says Jennifer Mnookin, a UCLA law professor who is leading a federally-

funded study of error rates in fingerprint comparisons. “And so part of the problem here really is about hubris or

over-claiming. It’s about a field that didn’t seem to feel a need to recognize its limits.”

FBI fingerprint expert Melissa Gische told FRONTLINE that, as a result of cases like Mayfield’s, she would no

longer testify to a zero error rate for fingerprints in court.

Sometimes Bite Marks Bite Back

One of the most controversial forensic techniques is bite-mark comparison. Bite marks can change over time and

be distorted due to factors like swelling and healing. Similar to fingerprint analysis, the assumption behind bite

mark comparisons that every person’s dental characteristics are unique has not been adequately scientifically

studied or scrutinized.

M E N U

Attorneys for the Innocence Project say that the scarcity of research backing up bite mark comparisons played a

role in a number of wrongful convictions over the years.

“There have been a number of people who were convicted based on bite-mark testimony who were sent to

death row or sent to prison for life,” says Neufeld, who represented both Levon Brooks

(http://www.innocenceproject.org/Content/Levon_Brooks.php) and Kennedy Brewer

(http://www.innocenceproject.org/Content/Kennedy_Brewer.php), both wrongly convicted based in large part on

faulty bite mark testimony (http://reason.com/archives/2007/10/08/csi-mississippi). “And in each of those cases, a

whole group of forensic odontologists, forensic dentists said they were absolutely certain that this was the guy

and they were absolutely wrong.”

Firearms, Bullets and Ballistic Identification

When shots are fired in the commission of crime, a forensic expert is often brought in to study the trajectory of

the bullets; later, he or she may testify in court as to the direction from which a bullet came and the firearm used

in the crime.

The National Academies of Sciences recognized the logic involved in trying to compare firearms-related marks by

noting, “although they are subject to numerous sources of variability, firearms-related tool marks are not com-
pletely random and volatile; one can find similar marks on bullets and cartridge cases from the same gun.” But

the NAS also observed, that “the validity of the fundamental assumptions of uniqueness and reproducibility of

firearms-related tool marks has not yet been fully demonstrated.”

The report added that, “a significant amount of research would be needed to scientifically determine the degree
to which firearms-related toolmarks are unique or even to quantitatively characterize the probability of

uniqueness.”

M E N U

One fundamental problem with firearms analysis is the lack of a precisely defined process, the NAS found. An ex-

aminer may offer an opinion that a specific tool or firearm was the source of a specific mark when “sufficient

agreement” exists in the pattern of two sets of marks, but there is no precise definition for that statement. The

NAS also found there have been no scientific studies to answer questions regarding variability, reliability, re-

peatability, or the number of correlations needed to achieve a given degree of confidence.

Matching Hair is Not as Simple as Splitting Hairs

For years, forensic hair examiners have testified that physical characteristics of hairs can be identified and used

to establish the presence, or absence, of certain people at a crime scene.

The problem? No scientifically-accepted statistics exist about the frequency with which particular characteristics

of hair are distributed in the population, according to the NAS. And there appears to be no uniform standards on

the number of matching features that must be present for an examiner to declare a match.

Recent studies reveal that microscopic hair analysis is not yet a precise science. One study by the FBI, cited in the

NAS report, found that of 80 hair comparisons done through microscopic examinations, 9 of them, about 12.5

percent, were found to come from different sources when reexamined through DNA analysis.

For more, read this Washington Post investigation (http://www.washingtonpost.com/local/crime/convicted-de-

fendants-left-uninformed-of-forensic-flaws-found-by-justice-dept/2012/04/16/gIQAWTcgMT_story.html) on how

problematic hair and fiber analysis may have led to wrongful convictions.

Where There’s Smoke There’s Not Necessarily Fire

When a fire occurs, fire investigators are called to the scene to determine the cause of the fire and the potential

for arson.

But according to the National Academies of Sciences, a lot more research is needed on the natural variability of

burn patterns and damage characteristics and how they are affected by the presence of various accelerants. In

fact, as FRONTLINE reported in the 2010 film Death by Fire (/wgbh/pages/frontline/death-by-fire/), many of the

supposed telltale signs of arson – the remnants of accelerant pour patterns, for example – can actually be caused

by natural phenomena during accidental fires.

“The fire investigation community largely consists of people who are firemen. They’re not scientists,” arson ex-

pert John Lentini told FRONTLINE. “Extinguishing a fire and investigating a fire involve two different skill sets

and two different mindsets.”

Another scientific expert, Gerald Hurst (/wgbh/pages/frontline/death-by-fire/interviews/gerald-hurst.html), of-

fered a startling “devil’s advocate” opinion about the state of arson testimony in the courtroom: ” I could take al-

most any fire and — if I were so inclined — convince a jury that it was arson. It’s frighteningly simple, frighten-

ingly easy.”

M E N U

Lentini’s website Scientific Fire Analysis hosts his breakthrough publications

(http://www.firescientist.com/publications.php) on arson science, including “The Lime Street Fire: Another

Perspective (http://www.firescientist.com/Documents/TheLimeStreetFire-AnotherPerspective.pdf),” [PDF] which

contests traditional understandings of burn patterns through a series of tests.

Watch this excerpt from Death by Fire for more on the emergence of new fire science — and how it called into

question the guilt of Cameron Todd Willingham

(http://www.newyorker.com/reporting/2009/09/07/090907fa_fact_grann), who was executed in 2004 after being

found guilty of the arson-murder of his three young children:

There is Solid Science Behind Drug Testing

Also known as forensic toxicology, the analysis of controlled substances involves the collection of chemicals that

have the legally recognized potential for abuse. They include “street drugs” such as heroin and ecstasy, and pre-

scription drugs like oxycodone.

Drug testing is the most frequent forensic function performed by publicly funded crime laboratories, which ana-

lyze biological samples for the presence of toxins present in an individual to determine whether the amount of

those substances is above a harmful level. It is used to make inferences on an individual’s death, illness, and men-

tal or physical impairment. Like DNA analysis, the analysis of controlled substances is a mature forensic science

discipline and one of the areas with strong scientific underpinnings developed along the lines of classical analyti-

cal chemistry.

M E N U

Learn more
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the analysis of controlled substances due to rigorous scientific testing.

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Shake-Up Inside Forensic Credentialing Organization (https://www.pbs.org/wgbh/frontline/article/shake-up-
inside-forensic-credentialing-organization/)
A P R I L 1 1 , 2 0 1 4

Can Juries Rely on Forensic Experts? (https://www.pbs.org/wgbh/frontline/article/can-juries-rely-on-forensic-
experts/)
S E P T E M B E R 5, 2 0 1 3

Mississippi Doctor’s Autopsies at Center of Wrongful Conviction Filings
(https://www.pbs.org/wgbh/frontline/article/mississippi-doctors-autopsies-at-center-of-wrongful-conviction-
filings/)
J A N U A R Y 8 , 2 0 1 3

R E L AT E D A R T I C L E S

TO P I C S

Criminal Justice (https://www.pbs.org/wgbh/frontline/topic/criminal-justice/)

M O R E S T O R I E S

S H O W C O M M E N T S

M E N U

N E X T O N F R O N T L I N E

A Rare Look Inside Police Training in Utah
(https://www.pbs.org/wgbh/frontline/article/video-police-
training-utah-shots-fired-documentary/)

How might police training impact whom, when and why officers

shoot? Watch an excerpt from the new FRONTLINE/Salt Lake

Tribune documentary “Shots Fired.”

N O V E M B E R 2 3 , 2 0 2 1

Is the Fear Factor Overblown in Police Shootings?
(https://www.pbs.org/wgbh/frontline/article/police-
shootings-fear-factor/)

Utah’s police training has been questioned for focusing on

worst-case scenarios.

N O V E M B E R 2 2 , 2 0 2 1

Kids and Climate Change: Who’s Learning What — or Not
— and Why?
(https://www.pbs.org/wgbh/frontline/article/cop26-kids-
climate-change-miseducation-book/)

As COP26 wraps, the new book ‘Miseducation: How Climate

Change Is Taught in America’ and past stories from former

FRONTLINE reporter Katie Worth offer more context.

N O V E M B E R 1 2 , 2 0 2 1

No Taper Tantrum & Other Recent Federal Reserve News,
Explained (https://www.pbs.org/wgbh/frontline/article/no-
taper-tantrum-quarles-resignation-federal-reserve/)

To make sense of it all, here’s a closer look at news that has

broken since the FRONTLINE documentary “The Power of the

Fed” first aired in July 2021 and what it means.

N O V E M B E R 1 0, 2 0 2 1

(https://www.pbs.org/wgbh/frontline/article/video-police-
training-utah-shots-fired-documentary/)

(https://www.pbs.org/wgbh/frontline/article/police-shootings-
fear-factor/)

(https://www.pbs.org/wgbh/frontline/article/cop26-kids-
climate-change-miseducation-book/)

(https://www.pbs.org/wgbh/frontline/article/no-taper-tantrum-
quarles-resignation-federal-reserve/)

S H O W M O R E ( H T T P S : // W W W. P B S .O R G / W G B H / F R O N T L I N E /A R T I C L E S / )

Poor Kids

F E B R U A R Y 1 1 , 2 0 1 3

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POLICE MISCONDUCT AND CIVIL RIGHTS

Police Misconduct and Civil Rights

Created by FindLaw’s team (https://www.�ndlaw.com/company/our-team.html) of legal writers and
editors | Last updated July 20, 2017

Police o�cers generally have broad powers to carry out their duties. The Constitution and other
laws, however, place limits on how far police can go in trying to enforce the law. As the videotaped
beating of motorist Rodney King, in Los Angeles illustrated, police o�cers sometimes go too far,
violating the rights of citizens. When this happens, the victim of the misconduct may have recourse
through federal and state laws. (https://www.�ndlaw.com/state/california-law/police-misconduct-
claims-in-california.html) A primary purpose of the nation’s civil rights laws is to protect citizens
from abuses by government, including police misconduct. Civil rights laws allow attorney fees and
compensatory and punitive damages as incentives for injured parties to enforce their rights.

Overcoming Immunity

Being stopped and questioned by police in connection with a crime is an unsettling experience for
most anyone. As long as the o�cer is performing his job properly, however, there is no violation of a
suspect’s rights. In fact, police o�cers are immune
(https://dictionary.�ndlaw.com/de�nition/immunity.html) from lawsuits for the performance of their
jobs unless willful, unreasonable conduct is demonstrated. Mere negligence, the failure to exercise
due care, is not enough to create liability.

Immunity therefore means that in the typical police-suspect interaction, the suspect cannot sue the
police. Civil rights remedies come into play for willful police conduct that violates an individual’s
constitutional rights.

Civil Rights Laws and Police Misconduct

A statute known as Section 1983 (https://www.�ndlaw.com/criminal/criminal-rights/42-u-s-code-
section-1983.html) is the primary civil rights law victims of police misconduct rely upon. This law
was originally passed as part of the Civil Rights Act of 1871, which was intended to curb oppressive
conduct by government and private individuals participating in vigilante groups, such as the Ku Klux
Klan. It is now called Section 1983 because that is where the law has been published, within Title 42

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of the United States Code. Section 1983 makes it unlawful for anyone acting under the authority of
state law to deprive another person of his or her rights under the Constitution or federal law. The
most common claims brought against police o�cers are:

False arrest (or false imprisonment (https://www.�ndlaw.com/injury/torts-and-personal-
injuries/false-imprisonment.html))
Malicious prosecution (https://www.�ndlaw.com/injury/torts-and-personal-injuries/malicious-
prosecution.html)
Unreasonable/excessive force (https://www.�ndlaw.com/criminal/criminal-procedure/excessive-
force-and-police-brutality.html)

False Arrest

The claim that is most often asserted against police is false arrest. Persons bringing this claim
assert that police violated their Fourth Amendment right against unreasonable seizure. If the o�cer
had probable cause (https://www.�ndlaw.com/criminal/criminal-rights/probable-cause.html) to
believe the individual had committed a crime, the arrest is reasonable and the Fourth Amendment
has not been violated. Police can arrest without a warrant for a felony or misdemeanor committed in
their presence. (Some states also allow warrantless arrests for misdemeanor domestic assaults not
committed in the o�cer’s presence.)

Even if the information the o�cer relied upon later turns out to be false, the o�cer is not liable if he
believed it was accurate at the time of the arrest. To prevail on a false arrest claim, the victim must
show that the arresting o�cer lacked probable cause, that is, facts su�cient to cause a reasonable
person to believe that a crime had been committed.

Malicious Prosecution

A malicious prosecution claim asserts that the o�cer wrongly deprived the victim of the Fourteenth
Amendment (https://constitution.�ndlaw.com/amendment14.html) right to liberty. To win this type
of claim, the victim must show four things:

1. The defendant police o�cer commenced a criminal proceeding.
2. The proceeding ended in the victim’s favor (that is, no conviction).
3. There was no probable cause.
4. The proceeding was brought with malice toward the victim.

As with false arrest, this claim will fail if the o�cer had probable cause to initiate criminal
proceedings.

Excessive Force

Excessive force claims receive the most publicity, perhaps because the results of excessive force
seem the most outrageous, involving serious physical injury or death. Whether the o�cer’s use of
force was reasonable depends on the surrounding facts and circumstances. The o�cer’s intentions
or motivations are not controlling. If the amount of force was reasonable, it doesn’t matter that the
o�cer’s intentions were bad. But the reverse is also true: if the o�cer had good intentions, but used
unreasonable force, the excessive force claim will not be dismissed.

Failure to Intervene

O�cers have a duty to protect individuals from constitutional violations by fellow o�cers. Therefore,
an o�cer who witnesses a fellow o�cer violating an individual’s constitutional rights may be liable
to the victim for failing to intervene.

Complaint for Employment
Discrimination
(https://www.uslegalforms.com/prodpages/US-
000267.htm%7Cfdlaw?�i=diyns)

The Quali�ed Immunity Defense

Defense attorneys representing a police o�cer for any of these claims will raise a defense of
quali�ed immunity. This defense exists to prevent the fear of legal prosecution from inhibiting a
police o�cer from enforcing the law. The defense will defeat a claim against the o�cer if the
o�cer’s conduct did not violate a clearly established constitutional or statutory right. In other words,
the speci�c acts the o�cer prevented the individual from engaging in must be legally protected,
otherwise there is no civil rights violation.

In order to win a civil rights claim, an individual bringing a police misconduct claim must prove that
the actions of the police exceeded reasonable bounds, infringed the victim’s constitutional rights,
and produced some injury or damages to the victim (such as wrongful death by police
(https://www.�ndlaw.com/injury/torts-and-personal-injuries/wrongful-death-by-police.html)).

Claims against police departments can be expensive to bring because a lot of evidence must be
secured, including records, statements of police, statements of witnesses, and various other
documentation, to prove the misconduct. The evidence supporting your claim is the most important
element in a police misconduct suit. Take photographs of any injuries or damage caused by the
police, and set aside clothing or other objects that was torn or stained with blood from the incident.
Try to get the names and addresses or telephone numbers of anyone who may have witnessed the
incident. Also, write down exactly what happened as soon as you can, so that you don’t forget
important details.

Assert your Rights Against Police Misconduct

Civil rights claims are an important part of our legal system, providing a balance between the duty of
law enforcement to uphold the laws, and the rights of individuals to be free from police misconduct.
Yet cases against police o�cers can be di�cult. O�cers may be immune from suit, even though an
individual feels he or she was mistreated. If you feel you’ve been the victim of police misconduct,
contact a Civil Rights Attorney (https://lawyers.�ndlaw.com/lawyer/practice/Civil%20Rights)
promptly so that valuable evidence does not disappear.

Next Steps

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Opinion analysis:
The exclusionary
rule is weakened
but it still lives

By Orin Kerr

on Jun 20, 2016 at 9:35 pm

Share

Utah v. Strieff is a signi�cant win for the

police. It goes a long way toward creating

an exception to the exclusionary rule for

searches of persons who have outstanding

warrants (which turns out to be a lot of

people). At the same time, it’s perhaps less

of a win than the police might have

enjoyed if Justice Antonin Scalia were still

on the Court.

I. Wong Sun lives, at least as formal

doctrine

I want to start with a big-picture doctrine

point. This case is the Supreme Court’s �rst

decision on the Fourth Amendment

exclusionary rule in �ve years. As I

explained in my argument preview, the

exclusionary rule has been in tremendous

�ux before this case. A big question lurking

in the case was whether the Court would

adopt preexisting exclusionary rule

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adopt p ee st g e c us o a y u e

doctrine or use this case to announce new

limits on the suppression remedy.

It should be noted, then, that Justice

Clarence Thomas’s majority opinion does

not purport to break new doctrinal ground.

The opinion applies the factors from

1975’s Brown v. Illinois and concludes

that suppression is unwarranted. Some

will complain about how the Court applied

those factors – I will do that myself below –

but it’s worth pausing to note that the

majority opinion did not overturn or

substantially revise Wong Sun v. United

States. This case instead reconciles the

pre-2000 case law on the “fruit of the

poisonous tree” doctrine (such as Wong

Sun and Brown) with post-2000 case law

(such as Hudson v. Michigan and Davis v.

United States).   According to today’s

opinion, all of the cases are ultimately

about cost-bene�t weighing.

As a matter of formal doctrine, then, Wong

Sun lives. That’s notable in part because it

might not have been the case had Scalia

remained on the Court. Scalia was a

committed opponent of the exclusionary

rule. This case was argued nine days after

Scalia’s death. It’s possible that a Court

with Scalia would have ruled more broadly.

II. Applying the Brown factors

On to the opinion itself. Today’s opinion

applies the three “factors” that the Court

recognized as particularly relevant to

attenuation in Brown. The Court presents

the Brown three-factor test as if it were

obviously the settled doctrine a court

should apply. It’s worth noting that this is

hardly so.

First of all, Brown itself does not say that

the attenuation doctrine is a three-factor

test. Brown suggests more of a “totality of

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the circumstances” analysis, with no

exclusive list of considerations. As Brown

stresses, there is no “talismanic test” for

attenuation. Second, post-Brown

attenuation cases have not focused on

Brown or applied a three-factor test.

Given that, it’s a little odd that the Court

proceeds through the three factors from

Brown in an almost mathematical way.

Two factors are strongly against

suppression and only one is for it, the

Court rules, so on balance the evidence

isn’t suppressed.

I think that’s an unfortunate framing.  The

core question raised by attenuation is

proximate cause. As Anthony Amsterdam

once put it, attenuation marks “the point of

diminishing returns of the deterrence

principle.” You can miss the forest for the

trees if you isolate the three “factors” that

happened to have been listed in Brown

without paying attention to the underlying

causation question.  But that was the

approach the Court adopted.

All the Justices agreed on how to apply the

�rst factor, which concerns the temporal

proximity of the violation. The evidence

was discovered just minutes after the

illegal stop, so that weighs pretty clearly in

favor of Edward Strieff. The Justices then

divided on the remaining two factors, and I

think the majority’s argument on these

points was unpersuasive.

Consider the second factor, which looks to

whether “intervening circumstances” made

the discovery of evidence remote from the

violation. The Court concludes that the

of�cer’s discovery of the warrant was an

“intervening circumstance” that was

“entirely unconnected with the stop.” I’m

unpersuaded. In the context of causation, I

think of an “intervening circumstance” as

an outside event that changes what is

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an outside event that changes what is

expected to happen. But here, the stop

unfolded exactly as the of�cer expected it

would. The existence of the warrant is only

an intervening circumstance if you didn’t

expect Strieff to have a warrant out for his

arrest. But stops lead to requests for ID

which lead to checks for warrants. As

Justice Elena Kagan noted in her dissent,

this played out just as you would expect.

I was also unpersuaded by the Court’s

application of the third Brown factor, the

purpose and �agrancy of the violation.

Although the majority opinion nowhere

notes it, the government has the burden of

proof in establishing attenuation. (Note the

holding of Brown: “We conclude that the

State failed to sustain the burden of

showing that the evidence in question was

admissible under Wong Sun.”) And in

recent decades, the Court has gone out of

its way to make clear that an of�cer’s

intent is completely irrelevant to whether

the Fourth Amendment was violated. That

means that there is usually nothing in the

record relevant to the of�cer’s purpose.

How can the government meet its burden

when there is no evidence in the record?

The majority largely �lls this in, concluding

that the Fourth Amendment violation was

“at most negligent” and was based on

“good-faith mistakes.” The majority adds:

But what’s the evidence either way?

[T]here is no indication that this

unlawful stop was part of any systemic

or    recurrent police misconduct. To the

contrary, all the evidence suggests that

            the stop was an isolated

instance of negligence that occurred in

connection   with a bona �de

investigation of a suspected drug

house.

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But what s the evidence either way?

Looking at the record in Strieff, the

government could only point to a single

statement relating to the of�cer’s purpose.

In the direct examination at the

suppression hearing, the prosecutor asked

the of�cer, “Why did you stop [Strieff]?” I

gather this was a question about what

cause the of�cer had to stop Strieff; the

prosecutor was trying to establish

reasonable suspicion to justify the stop.

The of�cer responded with a general

statement of his motive:

The majority suggests that this establishes

the of�cer’s good faith. I don’t see how.

According to the of�cer, his goal in making

the stop was to investigate the case. But in

the context of the exclusionary rule, the

difference between “good faith” and “bad

faith” is measured with respect to violating

the Fourth Amendment in investigating the

case, not whether the of�cer was trying to

investigate the case at all. The Court has

made clear that an of�cer who

intentionally or recklessly violates the

Fourth Amendment is acting in bad faith.

The Court has also held that an of�cer

who is trying to follow the law but through

circumstances happens to miss the Fourth

Amendment standard is acting in good

faith. In light of this, I don’t see how a

generic statement that the of�cer was

trying to investigate the case can meet the

government’s burden of showing good

faith.

III. Looking ahead

[Strieff] was coming out of the house

that I had been watching and I decided

           that I’d like to ask somebody if I

could �nd out what was going on the

house.

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In a practical sense, today’s opinion is

important. I think Justice Kagan is right in

her dissent that the majority’s approach

practically invites police of�cers to make

illegal stops. If you’re a police of�cer and

you want to search a suspect to help

investigate a crime, you just need to stop

the suspect and ask for ID to see if he has

an outstanding warrant. If there’s no

warrant out for his arrest, you can let him

go and he’s extremely unlikely to sue. If

there is a warrant, you can arrest him,

search him incident to arrest, and question

him later; the courts will allow that

evidence because you were acting in good

faith by trying to investigate the crime. The

police academies won’t teach of�cers to

violate the law, of course. At the margins,

though, of�cers will be encouraged to treat

almost anything as reasonable suspicion

to justify a stop. If in doubt, make the stop.

An important question is whether trial

courts will be open to developing a record

on the purpose and �agrancy of violations

and whether they focus more on the

burden of proof. In theory, the burden of

proving attenuation is on the government.

But in practice, I think a defense attorney

needs to build up a record to show

purpose and �agrancy. If the courts

presume that of�cers are acting in good

faith, defense lawyers need to put in

evidence at suppression hearings

indicating that this may be wrong.

IV. Part IV of Sotomayor’s dissent

Finally, I suspect that this case will become

most known for Part IV of Justice Sonia

Sotomayor’s dissent. Citing sources

ranging from Ta-Nehisi Coates to Michelle

Alexander, Sotomayor gives voice to the

anger and frustration of social movements

such as Black Lives Matter. According to

Sotomayor, the majority opinion “implies

that you are not a citizen of a democracy

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that you are not a citizen of a democracy

but the subject of a carceral state, just

waiting to be cataloged.” The voices of

those “who are routinely targeted by police

. . . are the canaries in the coal mine whose

deaths, civil and literal, warn us that no

one can breathe in this atmosphere.” “Until

their voices matter too,” she concludes,

“our justice system will continue to be

anything but.” That section will make her a

hero in some circles and a subject of

intense criticism in others. Notably,

however, no other Justice joined this

section of her opinion.

Posted in Analysis, Merits Cases

Cases: Utah v. Strieff

Recommended Citation: Orin Kerr, Opinion

analysis: The exclusionary rule is weakened

but it still lives, SCOTUSblog (Jun. 20, 2016,

9:35 PM),

https://www.scotusblog.com/2016/06/opinion-

analysis-the-exclusionary-rule-is-weakened-

but-it-still-lives/


Tweets by @SCOTUSblog 11,381 503,708Follow

Amy Howe @AHoweBlogger

SCOTUSblog @SCOTUSblog · 24 Nov

JUST IN: One new cert grant this morning: Berger v. North Carolina

State Conference of the NAACP. More on the case here:

https://www.scotusblog.com/case-�les/cases/berger-v-north-c…

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#SCOTUS adds one new case to its merits docket this

morning: Berger v. NC Conference of NAACP, in which

the justices will weigh in on an effort by Republican

legislators in the state to intervene to defend the

state’s voter-ID law. Here’s the order:

https://www.supremecourt.gov/orders/courtorders/112421zr_7li8.pdf

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ADVANCING JUSTICE THROUGH DNA TECHNOLOGY: USING DNA TO SOLVE
CRIMES

TOC | Executive Summary | Using DNA to Protect the Innocent

USING DNA TO SOLVE CRIMES

The past decade has seen great advances in a powerful criminal justice tool: deoxyribonucleic acid, or DNA. DNA
can be used to identify criminals with incredible accuracy when biological evidence exists. By the same token, DNA
can be used to clear suspects and exonerate persons mistakenly accused or convicted of crimes. In all, DNA
technology is increasingly vital to ensuring accuracy and fairness in the criminal justice system.

News stories extolling the successful use of DNA to solve crimes abound. For example, in 1999, New York
authorities linked a man through DNA evidence to at least 22 sexual assaults and robberies that had terrorized the city.
In 2002, authorities in Philadelphia, Pennsylvania, and Fort Collins, Colorado, used DNA evidence to link and solve a
series of crimes (rapes and a murder) perpetrated by the same individual. In the 2001 “Green River” killings, DNA
evidence provided a major breakthrough in a series of crimes that had remained unsolved for years despite a large law
enforcement task force and a $15 million investigation.

DNA is generally used to solve crimes in one of two ways. In cases where a suspect is identified, a sample of that
person’s DNA can be compared to evidence from the crime scene. The results of this comparison may help establish
whether the suspect committed the crime. In cases where a suspect has not yet been identified, biological evidence
from the crime scene can be analyzed and compared to offender profiles in DNA databases to help identify the
perpetrator. Crime scene evidence can also be linked to other crime scenes through the use of DNA databases.

For example, assume that a man was convicted of sexual assault. At the time of his conviction, he was required to
provide a sample of his DNA, and the resulting DNA profile was entered into a DNA database. Several years later,
another sexual assault was committed. A Sexual Assault Nurse Examiner worked with the victim and was able to
obtain biological evidence from the rape. This evidence was analyzed, the resulting profile was run against a DNA
database, and a match was made to the man’s DNA profile. He was apprehended, tried, and sentenced for his second
crime. In this hypothetical case, he was also prevented from committing other crimes during the period of his
incarceration.

DNA evidence is generally linked to DNA offender profiles through DNA databases. In the late 1980s, the federal
government laid the groundwork for a system of national, state, and local DNA databases for the storage and exchange
of DNA profiles. This system, called the Combined DNA Index System (CODIS), maintains DNA profiles obtained under
the federal, state, and local systems in a set of databases that are available to law enforcement agencies across the
country for law enforcement purposes. CODIS can compare crime scene evidence to a database of DNA profiles
obtained from convicted offenders. CODIS can also link DNA evidence obtained from different crime scenes, thereby
identifying serial criminals.

In order to take advantage of the investigative potential of CODIS, in the late 1980s and early 1990s, states began
passing laws requiring offenders convicted of certain offenses to provide DNA samples. Currently all 50 states and the
federal government have laws requiring that DNA samples be collected from some categories of offenders.

When used to its full potential, DNA evidence will help solve and may even prevent some of the Nation’s most
serious violent crimes. However, the current federal and state DNA collection and analysis system needs improvement:

(1) In many instances, public crime labs are overwhelmed by backlogs of unanalyzed DNA samples.

(2) In addition, these labs may be ill-equipped to handle the increasing influx of DNA samples and evidence. The
problems of backlogs and lack of up-to-date technology result in significant delays in the administration of
justice.

(3) More research is needed to develop faster methods for analyzing DNA evidence.

(4) Professionals working in the criminal justice system need additional training and assistance in order to ensure
the optimal use of DNA evidence to solve crimes and assist victims.

President Bush believes we must do more to realize the full potential of DNA technology to solve crime and protect the
innocent. Under the President’s initiative, the Attorney General will improve the use of DNA in the criminal justice
system by providing funds and assistance to ensure that this technology reaches its full potential to solve crimes.

1. Eliminating Backlogs Top

One of the biggest problems facing the criminal justice system today is the substantial backlog of unanalyzed DNA
samples and biological evidence from crime scenes, especially in sexual assault and murder cases. Too often, crime
scene samples wait unanalyzed in police or crime lab storage facilities. Timely analysis of these samples and
placement into DNA databases can avert tragic results. For example, in 1995, the Florida Department of Law
Enforcement linked evidence found on a rape-homicide victim to a convicted rapist’s DNA profile just eight days before
he was scheduled for parole. Had he been released prior to being linked to the unsolved rape-homicide, he may very
well have raped or murdered again.

By contrast, analysis and placement into CODIS of DNA profiles can dramatically enhance the chances that
potential crime victims will be spared the violence of vicious, repeat offenders. The President’s initiative calls for $92.9
million to help alleviate the current backlogs of DNA samples for the most serious violent offenses – rapes, murders,
and kidnappings – and for convicted offender samples needing testing. With this additional federal backlog reduction
funding, the funding provided by this initiative to improve crime laboratory capacity, and continued support from the
states, the current backlogs will be eliminated in five years.

Understanding the Backlog

The state and local backlog problem has two components: (1) “casework sample backlogs,” which consist of
DNA samples obtained from crime scenes, victims, and suspects in criminal cases, and (2) “convicted offender
backlogs,” which consist of DNA samples obtained from convicted offenders who are incarcerated or under
supervision. The nature of the DNA backlog is complex and changing, and measuring the precise number of
unanalyzed DNA samples is difficult.

Casework Sample Backlogs: In a 2001 survey of public DNA laboratories, the Bureau of Justice Statistics (BJS)
found that between 1997 and 2000, DNA laboratories experienced a 73% increase in casework and a 135%
increase in their casework backlogs. Many casework samples go unanalyzed for lack of a suspect to which to
compare the biological evidence from the crime scene. These are often referred to as “no-suspect” cases.
Based on an ongoing assessment of crime laboratories and law enforcement agencies, the National Institute of
Justice (NIJ) estimates that the current backlog of rape and homicide cases is approximately 350,000. The
initiative calls for $76 million in FY 2004 to help eliminate these backlogs over five years.

Convicted Offender Backlogs: States are increasing the number of convicted offenders required to provide DNA
samples. Currently, 23 states require all convicted felons to provide DNA samples. Preliminary estimates by NIJ
place the number of collected, untested convicted offender samples at between 200,000 and 300,000. NIJ also
estimates that there are between 500,000 and 1,000,000 convicted offender samples that are owed, but not yet

collected. The initiative calls for $15 million in FY 2004 to help eliminate convicted offender backlogs over five
years.

The federal government also faces a high demand for analysis of casework and convicted offender DNA
samples. The FBI has two DNA casework analysis units (see page 5). The first unit, which focuses on analyzing
nuclear DNA, has a backlog of approximately 900 cases. The second unit, which focuses on analyzing mitochondrial
DNA (mtDNA), has a backlog of roughly 120 cases.

The federal government also collects DNA samples from persons convicted of offenses in certain categories,
including crimes of violence or terrorism. The FBI currently has a backlog of approximately 18,000 convicted offender
samples. The initiative calls for $1.9 million in FY 2004 to fund the federal convicted offender program; some of these
funds will be devoted to eliminating the federal convicted offender backlog.

Effect of Clearing the Backlog

The results of addressing backlogs are dramatic, as the two examples below illustrate:

In September 1993, a married couple was attacked on a jogging trail in Dallas by a man with a gun who sexually
assaulted the woman after shooting the man. No suspect was ever positively identified, although police
investigated over 200 leads and 40 potential suspects. In August 2000, evidence from the case was analyzed
using current DNA technology. Then, in February 2001, the DNA sample was matched to an individual who was
already serving a five-year sentence for an unrelated 1997 sexual assault of a child. The man has since been
convicted of capital murder and aggravated sexual assault.

In March 1992, an Alexandria, Virginia shop owner was stabbed more than 150 times in her home. There were
no witnesses to the crime. For years, detectives had no leads, but they did have traces of someone’s blood,
apparently from the fierce struggle between the victim and the killer. Meanwhile, in 1996, a man pleaded guilty
to robbing a gas station, and his DNA was collected for analysis and inclusion in the Virginia DNA database.
Because of the backlog, the man’s sample was not immediately analyzed. In the summer of 2000, the sample
was analyzed and matched through the database to the evidence from the Alexandria woman’s murder. In April
2001, almost nine years after the commission of this brutal crime, the man was sentenced to life in prison.

Several law enforcement agencies, prosecutors’ offices, and crime labs across the country have established
innovative programs to review old cases. Often called “cold case units,” these programs have enabled criminal justice
officials to solve cases that have languished for years without suspects. Most frequently, DNA evidence has been the
linchpin in solving these cases. For instance, this past July, a California man was found guilty of the 1974 rape-
homicide of a 19 year-old pregnant woman – a case that was solved through DNA evidence nearly thirty years after the
crime was committed.

Prior Federal Support of State DNA Backlog Reduction

In recent years, the federal government has strongly supported states in their efforts to eliminate backlogs of
convicted offender and casework DNA samples. Since the creation in 2000 of the Department of Justice’s (DOJ’s)
Convicted Offender DNA Backlog Reduction Program, more than 493,600 offender samples from 24 states have been
analyzed. Since the creation in 2001 of the No Suspect Casework DNA Backlog Reduction Program, federal funds
have been provided to support the analysis of approximately 24,800 cases. States have analyzed evidence in an
additional 18,000 “no-suspect” cases as a result of a match requirement of Convicted Offender DNA Backlog Reduction
funding.

In 2002 and 2003 combined, the President requested and Congress appropriated $70.8 million to fund these DNA
backlog reduction programs. Additionally, Attorney General John Ashcroft also made available $25 million in Asset
Forfeiture funds to address the backlog of convicted offender and “no suspect” casework samples. Thus, the Bush
Administration already has devoted more than $95 million to reducing DNA backlogs.

2. Strengthening Crime Laboratory Capacity Top

At present, many of our Nation’s crime laboratories do not have the capacity necessary to analyze DNA samples in
a timely fashion. Many have limited equipment resources, outdated information systems, and overwhelming case
management demands. As a result, the criminal justice system as a whole is unable to reap the full benefits of DNA
technology. The President’s initiative will provide federal funding to further automate and improve the infrastructure of
federal, state, and local crime labs so they can process DNA samples efficiently and cost-effectively. These
infrastructure improvements are critical to preventing future DNA backlogs, and to helping the criminal justice system
realize the full potential of DNA technology.

Increasing the Analysis Capacity of Public Crime Labs

The President’s initiative will provide significant support to public crime labs so that these labs can update their
infrastructure, automate their DNA analysis procedures, and improve their retention and storage of forensic evidence.
The initiative calls for $60 million in FY 2004 funding, which will be dedicated to:

Providing Basic Infrastructure Support: Some public crime laboratories still need assistance to help them obtain
equipment and material to conduct the basic processes of DNA analysis – extraction, quantitation, amplification
and analysis – and to help them meet various accreditation requirements.

Building Infrastructure through Laboratory Information Management Systems: Laboratory Information
Management Systems, or “LIMS,” are designed to automate evidence handling and casework management, to
improve the integrity and speed of evidence handling procedures, and to ensure proper chain of custody. DOJ
estimates that only 10 percent of the public DNA laboratories have LIMS systems.

Providing Automation Tools to Public DNA Laboratories: To streamline aspects of the DNA analysis procedure
that are labor and time-intensive, crime laboratories should have automated systems, such as robotic DNA
extraction units. Automated DNA analysis systems increase analyst productivity, limit human error and reduce
contamination.

Providing Support for the Retention and Storage of Forensic Evidence: Forensic evidence must be stored in a
manner that ensures its integrity and maintains its availability throughout criminal investigations and judicial
proceedings. Appropriate evidence storage conditions require costly equipment such as security systems,
environmental control systems, ambient temperature monitors, and de-humidifiers. The initiative will support the
improvement of evidence storage capabilities.

Funding the FBI Forensic Analysis Programs

The FBI Laboratory runs several different programs for the analysis of DNA information. The Nuclear DNA
Program supports federal, state, local, and international law enforcement agencies by providing advanced technical
assistance within the forensic biology discipline and sub-disciplines through interrelated capabilities and expertise. The
Mitochondrial DNA (mtDNA) Analysis Program is responsible for performing mtDNA analysis of forensic evidence
containing small or degraded quantities of DNA on items of evidence submitted from federal, state, and local law
enforcement agencies. Mitochondrial DNA is a powerful tool available for investigating cases of kidnapping, missing
persons, and skeletal remains where nuclear DNA is not present. The initiative will provide funds to these two existing
programs to permit them to continue their important work. In addition, the initiative will provide funds to the FBI to
further expand regional mtDNA labs that will provide an alternative source for mtDNA analysis to state and local law
enforcement, and allow the FBI laboratory to concentrate more of its efforts on federal cases. The initiative calls for
$20.5 million in FY 2004 to fund these programs.

Funding the Combined DNA Index System

The Combined DNA Index System (CODIS), administered by the FBI, maintains DNA profiles obtained through
federal, state, and local DNA sample collection programs, and makes this information available to law enforcement
agencies across the country for law enforcement identification purposes. Currently, the National DNA Index System
(NDIS) of CODIS contains about 1.7 million DNA profiles. The President’s initiative includes funding to complete a
general redesign and upgrade of CODIS, which will increase the system’s capacity to 50 million DNA profiles, reduce

the search time from hours to microseconds for matching DNA profiles, and enable instant, real‑time (as opposed to
weekly) searches of the database by participating forensic laboratories. The initiative calls for $9.9 million in FY 2004 to
fund this program.

3. Stimulating Research And Development Top

In order to improve the use of DNA technology to advance the cause of justice, the Attorney General will stimulate
research and development of new methods of analyzing DNA samples under the President’s initiative. Also, the
President has asked the Attorney General to establish demonstration projects under the initiative to further study the
public safety and law enforcement benefits of fully integrating the use of DNA technology to solve crimes. Finally, the
President has directed the Attorney General to create a National Forensic Science Commission to study rapidly
evolving advances in all areas of the forensic sciences and to make recommendations to maximize the use of the
forensic sciences in the criminal justice system. In all, the President’s initiative will devote $24.8 million in FY 2004 to
fund advances in the use of DNA technology.

Improving DNA Technology

Forensic DNA analysis is rapidly evolving. Research and development of tools that will permit crime laboratories
to conduct DNA analysis quickly is vital to the goal of improving the timely analysis of DNA samples. Smaller, faster,
and less costly analysis tools will reduce capital investments for crime laboratories while increasing their capacity to
process more cases. Over the course of the next several years, DNA research efforts will focus on the following areas:

The development of “DNA chip technology” that uses nanotechnology to improve both speed and resolution of
DNA evidence analysis. This technology will reduce analysis time from several hours to several minutes and
provide cost-effective miniaturized components.

The development of more robust methods to enable more crime labs to have greater success in the analysis of
degraded, old, or compromised items of biological evidence.

Advanced applications of various DNA analysis methods, such as automated Short Tandem Repeats (STRs),
Single Nucleotide Polymorphisms (SNPs), mitochondrial DNA analysis (mtDNA), and Y-chromosome DNA
analysis.

The use of animal, plant, and microbial DNA to provide leads that may link DNA found on or near human
perpetrators or victims to the actual perpetrator of the crime.

Technologies that will enable DNA identification of vast numbers of samples occasioned by a mass disaster or
mass fatality incident.

Technologies that permit better separation of minute traces of male sexual assailant DNA from female victims.

The initiative devotes $10 million in FY 2004 funding to benefit the state and local criminal justice community
through DNA research and development. It also requests $9.8 million in FY 2004 funding to further expand the FBI’s
DNA research and development program.

Establishing DNA Demonstration Projects

To further research the impact of increased DNA evidence collection on public safety and law enforcement
operations, the Attorney General will conduct rigorous scientific research through demonstration projects on the use of
DNA evidence under the initiative. This research will help determine the scope of public safety benefits that result when
police are trained to more effectively collect DNA evidence and prosecutors are provided with training to enhance their
ability to present this evidence in court.

Several jurisdictions will be selected to incorporate core training and evidence collection requirements in their daily
operations. At each site, one or more law enforcement agencies will be chosen to implement extensive training on the
collection of DNA evidence and to increase the resources devoted to the investigation and prosecution of these cases.

Prosecutors will also receive training on how to more effectively present DNA evidence and how forensic DNA
technology may be used to solve current and “cold” cases. Jurisdictions that received increased training and resources
will be compared with jurisdictions that did not receive these benefits.

The resulting comparison will measure the impact of increased DNA evidence collection on public safety and law
enforcement operations. For example, projects will examine whether there are increased crime clearance rates,
whether DNA aided investigations, the number of cases successfully prosecuted, the number of cases where guilty
pleas were obtained due to the presence of DNA evidence, any financial savings resulting from the use of forensic
evidence, and increased responsiveness to victims. The information obtained will allow state and local governments to
make more informed decisions regarding investment in forensic DNA as a crime-fighting tool. The initiative calls for
$4.5 million in FY 2004 to fund these projects.

Creating a National Forensic Science Commission

To facilitate the ability of policymakers to assess the needs of the forensic science community, and to stimulate
public awareness of the uses of forensic technology to solve crimes, the President has directed the Attorney General to
create a National Forensic Science Commission. The Commission will be charged with two primary responsibilities: (1)
developing recommendations for long-term strategies to maximize the use of current forensic technologies to solve
crimes and protect the public, and (2) identifying potential scientific breakthroughs that may be used to assist law
enforcement.

The Attorney General will appoint Commission members from professional forensic science organizations and
accreditation bodies and from the criminal justice community. These individuals will have broad knowledge and in-
depth expertise in the criminal justice system and in various areas of the forensic sciences such as analytical
toxicology, trace evidence, forensic biology, firearms and toolmark examinations, latent fingerprints, crime scene
analysis, digital evidence, and forensic pathology, in addition to DNA. Judges, prosecutors, attorneys, victim
advocates, and other members of the criminal justice system will also be represented on the Commission.

The Commission will study advances in all areas of the forensic sciences and make recommendations on how
new and existing technologies can be used to improve public safety. The Commission will also serve as an ongoing
forum for discussing initiatives and policy, and may issue recommendations that will assist state and local law
enforcement agencies in the cost-effective use of these technologies to solve crimes. The initiative devotes $500,000
in FY 2004 to the establishment of the Commission.

4. Training the Criminal Justice Community Top

In order to maximize the use of DNA technology, under the President’s initiative, the Attorney General will develop
training and provide assistance regarding the collection and use of DNA evidence to the wide variety of professionals
involved in the criminal justice system, including police officers, prosecutors, defense attorneys, judges, forensic
scientists, medical personnel, victim service providers, corrections officers, and probation and parole officers.

Key players in the criminal justice system should receive additional training in the proper collection, preservation,
and use of DNA evidence. Fundamental knowledge of the capabilities of DNA technology is essential for police officers
to collect evidence properly, prosecutors and defense attorneys to introduce and use it successfully in court, and judges
to rule correctly on its admissibility. Victim service providers and medical personnel likewise need to understand DNA
technology in order to encourage more successful evidence collection and to be fully responsive to the needs of
victims.

Law Enforcement Training

As the first responders to crime scenes, law enforcement officers should be able to identify, collect and preserve
probative biological evidence for submission to crime laboratories. Improper collection can mean that valuable
evidence is missed or rendered unsuitable for testing. The initiative devotes $3.5 million in FY 2004 to assist law
enforcement in meeting the following training needs:

Basic “awareness training” on DNA evidence for patrol officers and other first-responders;

Intensive training on identifying, collecting, and preserving potential DNA evidence for evidence technicians,
investigators, and others processing crime scenes;

Training and education for investigators and responding officers on DNA databases and their potential to provide
leads in current and “cold” cases; and

Training and information for law enforcement leadership and policymakers to facilitate more informed decisions
about effective DNA evidence collection and testing.

Training Prosecutors, Defense Attorneys, and Judges

In order to achieve just results in cases involving DNA evidence, prosecutors, defense attorneys, and judges
should receive proper training on the use and presentation of DNA evidence. The initiative devotes $2.5 million in FY
2004 to support:

Training and technical assistance for prosecutors to learn about solving “cold cases” with DNA evidence,
responding to post-conviction DNA testing requests, and developing innovative legal strategies to optimize the
power of forensic DNA technology. Grant funds will be available for state and local prosecutors’ organizations
for the development and delivery of training materials to assist prosecutors in presenting this evidence before
courts and juries, and in understanding more about the value of DNA evidence in particular cases.

Training for defense counsel handling cases involving biological evidence on the applications and limitations of
DNA evidence. Grant funds will be made available to continuing legal education programs or bar associations to
provide training and resources on forensic DNA technology.

Training for judges, who must be equipped with sufficient technical and scientific knowledge to make appropriate
rulings in cases involving DNA evidence. Grant funds will be available to national judicial conferences and
organizations.

Training For Probation and Parole Officers and Corrections Personnel

Probation and parole officers play a critical role in ensuring that offenders are complying with their statutory
obligations to provide DNA samples. Corrections personnel often are responsible for obtaining DNA samples from
inmates required by law to submit such samples. Through training and education programs, these professionals will be
better equipped to ensure that samples are taken from all individuals who are required by law to provide them. The
initiative calls for $1 million in FY 2004 to support this training.

Training for Forensic Scientists

The forensic science community has a critical need for trained forensic scientists in public crime laboratories. The
initiative will assist the development of comprehensive training programs for a new generation of forensic scientists,
enabling new forensic scientists to receive in-depth training to prepare them for analyzing actual casework in a crime
laboratory. The initiative calls for $3 million in FY 2004 to support this training.

Training for Medical Personnel

The initiative will also provide $5 million in FY 2004 to support the development of training and educational materials for
doctors and nurses involved in treating victims of sexual assault. Trained medical personnel are needed to effectively
collect usable DNA evidence, while safeguarding the privacy rights and addressing the needs of rape victims requiring
sexual assault exams. These programs will specifically target underserved areas of the country. Funding may also be
used to support the development of SANE (Sexual Assault Nurse Examiner), SAFE (Sexual Assault Forensic
Examiner), and SART (Sexual Assault Response Team) programs.

Training for Victim Service Providers

Victims and those who advocate on their behalf must have access to information about the investigative and courtroom
uses of forensic DNA evidence. Victims should be properly informed about how DNA evidence may impact their cases.
In situations involving post-conviction DNA testing, victim service providers must be able to assist victims through the
often-painful process of newly-ordered DNA tests and re-opened court proceedings. To address the concerns of
victims, the initiative would develop additional DNA education and training programs for victim advocates and victim
service providers so that they may better assist victims in all cases involving DNA evidence. The initiative calls for $5
million in FY 2004 to support this training.

TOC | Executive Summary | Using DNA to Protect the Innocent

Updated March 7, 2017

0091-4169/84/7501-139
Tilt J(H’RN.AL OK CRIMINAL LAW & CRIMINOUXJY Vol. 7.̂ , No. 1
Copyright © 1984 by Norlhweslcrn University School of Law Prmled in U.SA.

THE ATTENUATION EXCEPTION TO
THE EXCLUSIONARY RULE: A

STUDY IN ATTENUATED
PRINCIPLE AND DISSIPATED

LOGIC

I. I N T R O D U C T I O N

For seventy years, courts have used the exclusionary rule to safe-
guard the constitutional rights of criminal defendants.’ Broadly stated,

1 The Supreme Court first employed the exclusionary rule in a federal criminal case in
United States v. Weeks, 232 U.S. 383 (1914), and applied the exclusionary rule to the states
through the due process clause of the fourteenth amendment in Mapp v. Ohio, 367 U.S. 643
(1961). The Supreme Court did not rule upon the admissibility of evidence obtained through
a violation of constitutional rights until 1914 because the Court lacked express appellate juris-
diction over criminal cases until a century after the enactment of the fourth amendment. In
United States v. Sanger. 144 U.S. 310, 319 (1892), the Court explained its appellate jurisdic-
tion over criminal cases;

The appellate jurisdiction of this court rests wholly on the acts of Congress. For a long
time after the adoption of the Constitution, Congress made no provision for bringing any
criminal case from a Circuit Court of the United States to this court by writ of er-
ror. . . . [In United States v. More, 7 U.S. (3 Cranch) 159, 173-74 (1805)] this court
. . . held that it had no jurisdiction of a writ of error in a criminal case. . . .

Congress did not grant appellate jurisdiction to the Supreme Court in capital cases until
1889, Act of February 6, 1889, ch. 113, § 6 , 25 Stat. 655, 656, for “otherwise infamous
crime[s)” until 1891, Act of March 3, 1891, ch. 517, § 5, 26 Stat. 826, 827, r̂ /’ftf/̂ -a’*)’ Act of
January 20, 1897, ch. 68, 29 Stat. 492, and finally for all criminal cases until 1911. Act of
March 3, 1911, § 240, 36 Stat. 1087, 1157 (1911) (codified at 28 U.S.C. § 1254(3) (1976)).

In Weeks, state and federal law enforcement officials searched the defendant’s home and
seized personal papers and effects, alt without a warrant. 232 U.S. at 386. The government
introduced the seized items at the defendant’s trial. Id. at 388. A unanimous Court held that
the government’s warrantless search and seizure violated the defendant’s constitutional rights.
Id. at 398. The Court further held that the trial court committed reversible error by receiving
into evidence the illegally seized items. Id. The Court remanded the case for further proceed-
ings without the use of the documents seized by the federal marshals. Id. at 398-99,

The Supreme Court used a three part rationale to justify the exclusion of the unlawfully
acquired evidence. First, the fourth amendment restrains both the police and the courts in
their exercise of authority, and, correspondingly, obligates both the police and the courts to
enforce fourth amendment protections. Id. at 391-92. Second, because a trial court can per-
petuate a fourth amendment violation committed by the police, fourth amendment rights, by
implication, exist both before and during trial. Id. at 398. Third, a remedy for fourth amend-
ment violations, therefore, also must exist at trial: illegally seized evidence is inadmissible
against the defendant. See id. at 393, 398.

The Court in Weeks believed that if trial courts admitted illegally obtained evidence,
“the protection of the Fourth Amendment . . . is of no value . . . [and] might as well be

139

140 COMMENTS [Vol. 75

the exclusionary rule, or suppression doctrine, prohibits the government
from using evidence obtained in violation of the fourth amendment
against a defendant in criminal proceedings.- The exclusionary rule for-
bids the use of the direct and indirect evidentiary fruits of the govern-
ment’s misconduct. For example, if the government acquires a
defendant’s personal papers in an unconstitutional search and seizure,
the exclusionary rule forbids the government from directly introducing
the papers against the defendant at triaP or from using its knowledge of
the existence of the papers to obtain them indirectly by subpoena.**

The Supreme Court has recognized two exclusionary rule excep-
tions that are based upon the circumstances surrounding the unconstitu-
tional discovery of the evidence. The “independent source” exception
allows the government to use illegally obtained evidence if the govern-
ment also discovered the evidence by means independent of its miscon-
duct.^ The attenuation exception, in contrast, permits the use of

stricken from the Constitution” Id. at 393. Thus, full protection of fourth amendment rights
requires that courts do nothing less than exclude illegally obtained evidence: to approve po-
lice conduct after the fact “would be to affirm by judicial decision a manifest neglect if not an
open defiance of the prohibitions of the Constitution . . . ” Id. at 394.

2 Weeks, 232 U.S. at 398. The exclusionary rule does not govern only fourth amendment
violations. Courts have long suppressed evidence, typically confessions, obtained in violation
of the fifth amendment. See, e.g. , Harrison v. United States, 392 U.S. 219 (1968); Bram v.
United States, 168 U.S. 532 (1897). Likewise, the Supreme Court has required the suppres-
sion of evidence obtained in violation of a defendant’s sixth amendment right to counsel. See,
e.g, Gilbert v. California, 388 U.S. 263 (1967), and United States v. Wade. 388 U.S. 218
(1967) (witnesses’ in-court identifications of defendants must be excluded from trial where
they are the product of pretrial lineups held in the absence of the defendants’ lawyers). Al-
though the Supreme Court has used the exclusionary rule to remedy fifth and sixth amend-
ment violations, courts and commentators most often discuss the exclusionary rule as a
remedy for fourth amendment violations. See generally Comment, Trends in Legal Commentary on
the Exclusionary Rule, 65 J. C R I M . L. & CRIMINOLOGY 373 (1974) and cases and authorities
cited therein.

3 See, e.g , Weeks v. United States, 232 U.S. 383 (1914).
^ See, e.g , Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920). For further

discussion o{ Silverthorne, see infra note 20.
^ Silverthorne, 251 U.S. at 392. The independent source exception actually is more of a

correlate than an exception to the exclusionary rule. The exclusionary rule states that the
government cannot use illegally obtained evidence; the independent source exception states
that the government can use illegally obtained evidence if the government also discovered the
evidence by means independent of its misconduct. Thus, the independent source rule simply
recognizes that the exclusionary rule does not apply where it was not meant to apply, to cases
where the government’s misconduct was not the source of the evidence. However, because the
courts refer to the independent source rule as an exception to the exclusionary rule, see, e.g.,
United States v. Crews, 445 U.S. 463, 470 (1980), this Comment will refer to it as such. For
further discussion of the independent source exception, see infra notes 87-88 and accompany-
ing text.

In the 1983 term, the Supreme Court recognized for the first time an inevitable discovery
exception. In Nix v. Williams, 35 Cr. L. Rptr. 3119 (1984), the Court held that illegally
obtained evidence is admissible if the evidence “ultimately or inevitably would have been
discovered by lawful means. . . .” 35 Cr. L. Rptr. at 3123.

1984] A TTENUA TION EXCEPTION 141

evidence discovered through the government’s misconduct if the connec-
tion between the misconduct and the discovery of the evidence is sufiS-
ciently weak.**

This Comment will examine the courts’ use of the attenuation ex-
ception to admit illegally obtained evidence at trial against criminal de-
fendants. This Comment first will trace the origin and development of
the attenuation exception.^ In Section III, this Comment will argue
that the Supreme Court did not intend to create an attenuation excep-
tion to the exclusionary rule because in Nardone v. United States ̂ the deci-
sion recognized as the origin of the attenuation exception,^ the Supreme

6 See, e.g , United States v. Ceccolini, 435 U.S. 268, 274-75 (1978); Wong Sun v. United
States, 371 U.S. 471, 487-88 (1963). The Supreme Court also has limited the application of
the exclusionary rule based upon the government’s proposed use of illegally obtained evi-
dence. See United States v. Havens, 446 U.S. 620 (1980) (evidence inadmissible in the gov-
ernment’s case-in-chief can be used to impeach the defendant); United States v. Salvucci, 448
U.S. 83 (1980) (evidence obtained in illegal search and seizure admissible against defendant
whose fourth amendment rights were not violated by search and seizure); Michigan v. DeFil-
lippo, 443 U.S. 31 (1979) (government obtained evidence in a search incident to arrest made
pursuant to a statute found unconstitutional after the arrest; evidence held admissible); Stone
V. Powell, 428 U.S. 465 (1976) (federal courts must not use exclusionary rule as basis for
granting habeas corpus writ where the prisoner had a “full and fair” opportunity to litigate
fourth amendment claim in state court); United States v. Janis, 428 U.S. 433 (1976) (evidence
state police obtained in good faith violation of fourth amendment admissible in federal civil
tax proceeding); Michigan v. Tucker, 417 U.S. 433 (1974) (despite inadmissibility of defend-
ant’s statements obtained in violation oi Miranda, evidence discovered as a result of defend-
ant’s statements is admissible); United States v. Calandra, 414 U.S. 338 (1974) (government
may use illegally obtained evidence as basis of questions for witness before federal grand
jury).

Lower courts also have refused to extend the exclusionary rule to certain situations. See
United States v. Williams, 622 F.2d 830 (5th Cir. 1980) (en bane), cert, denied, 449 U.S. 1127
(1981) (evidence admissible where the police acted in good faith when they discovered evi-
dence in violation of fourth amendment); People v. Finkey, 105 111 App. 3d 230. 434 N.E.2d
18 (1982) (illegally obtained evidence admissible to rebut the defendant’s insanity defense).

While the above exceptions significantly limit the suppression doctrine, the attenuation
exception most clearly illustrates the conflict betwen the rationales for excluding and admit-
ting illegally acquired evidence. Unlike the other exceptions recognized by the Supreme
Court, the attenuation exception involves evidence concededly acquired in violation of the
defendant’s constitutional rights and offered by the government in its case in-chief against the
defendant. Only a broadly stated good faith exception would allow the government to more
easily convict defendants with unlawfully discovered evidence than is currently possible with
the attenuation exception.

‘ See infra notes 14-59 and accompanying text.
8 308 U.S. 338 (1939).
^ See,e.g. United States v. Brookins, 614 F.2d 1037, 1041 (5th Cir. 1980); United States«

ret. Owens v. Twomey, 508 F.2d at 865; United States v. Evans, 454 F.2d 813, 817 (8th Cir.),
cert, denied, 406 U.S. 969 (1972); Killough v. United States, 315 F.2d 241, 252 (D.C. Cir.
l962)(Wright, J., concurring); United States v. Alston, 311 F. Supp. 296, 298 (D.D.C. 1970);
Broeder, Wong Sun v. United States: A Study in Faith and Hope, 42 N E B . L . R E V . 483. 545-46
(1963); Comment, Fruit of the Poisonous Tree—A Plea for Relevant Criteria, 115 U. P A . L . R E
1136, 1139 (1967); Comment, Scope of Taint Under the Exclusionary Rule of the Fifth Amendment
Privilege Against Self-Incrirninatwn, 114 U. PA. L . R E V . 570, 576 (1966). But see Maguire,//(?«’ to
Unpoison the Fruit—The Fourth Amendment and the Exclusionary Rule, 55 J. C R I M . L . C R I M I N O L –

142 COMMENTS [Vol. 75

Court intended only to restate the independent source exception.’^
This Comment will argue further in Section IV that the attenua-

tion exception is inconsistent with the purposes of the fourth amend-
ment and the suppression doctrine.” The suppression doctrine is
designed to safeguard the fourth amendment right against unreasonable
searches and seizures by denying the government the use of the eviden-
tiary fruits of unconstitutional intrusions.’2 Because the attenuation ex-
ception allows the government to use evidence that the government
discovered solely through an illegal search or seizure, the attenuation
exception undermines the exclusionary rule’s function as a safeguard of
fourth amendment rights.’^ This Comment concludes that courts
should not sanction the abridgement of constitutional rights based solely
upon a finding of an attenuated connection between the government’s
misconduct and its discovery of evidence.

II. T H E S U P R E M E C O U R T ‘ S D E V E L O P M E N T O F T H E A T T E N U A T I O N

E X C E P T I O N

A. NARDONE V. UNITED STATES: T H E ORIGIN O F T H E ATTENUATION

EXCEPTION

Courts cite the following passage in Nardone v. United States as the
origin of the attenuation exception: “Sophisticated argument may prove
a causal connection between information obtained through illicit wire-
tapping and the Government’s proof. As a matter of good sense, how-
ever, such connection may have become so attenuated as to dissipate the
taint.”‘** This passage appears to mean that evidence discovered
through the government’s misconduct is admissible if the connection be-
tween the misconduct and the discovery of the evidence is attenuated—
weakened—so as to make the evidence untainted by the government’s
misconduct.’^

In Nardone, the government introduced into evidence testimony dis-
covered as a result of illegal wiretapping.’^ The government, however,

OGY & POLICE Sci. 307, 310 (1964) {Nardone not cited as creating a separate attenuation
exception).

10 See infra notes 60-61 and accompanying text.
* * See infra notes 76-118 and accompanying text.
*2 See infra notes 77-85 and accompanying text.
*3 See infra notes 89-96, 112-18 and accompanying text.
‘4 Nardone v. United States, 308 U.S. 338, 341 (1939). For cases quoting this passage as

the origin of the attenuation exception, see, for example. United States cr rel. Owens v. Two-
mey, 508 F.2d 858, 865 (7th Cir. 1974); United States v. Evans, 454 F.2d 813, 817 (8th Cir.),
cert, denied, 406 U.S. 969 (1972).

‘^ For further discussion of the argument that the Court merely restated the independent
source exception in Nardone, see infra notes 60-61 and accompanying text.

‘^ The law at issue in Nardone was § 605 of the Communications Act of 1934. Section 605

1984] A TTENUA TION E. XCEPTION 143

did not introduce the illegally wiretapped conversations themselves.’^
The question before the Court, therefore, was whether the federal wire-
tapping regulations prohibited the use of both the direct and indirect
evidentiary fruits of illegal wiretaps.’^

provided in pertinent part: “[N]o person not being authorized by the sender shall intercept
any communication and divulge or publish the existence, contents, substance, purport, effect.
or meaning of such intercepted communication to any person. . . .” 48 Stat. 1064, 11U4
(June 19, 1934). After Congress enacted comprehensive wiretapping regulations in Title III
of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-20 (1976),
Congress amended § 605 to read: “No person . . . shall intercept any radio communica-
tion. . . .” 47 U.S.C. §605 (1976) (emphasis supplied).

The Court in Nardone applied § 605 instead of the fourth amendment because of Olm-
stead V. United States, 277 U.S. 438, 466 (1928), which held that wiretapping was not a
search or seizure within the meaning of the fourth amendment. See United States v. Nardone,
106 F.2d 41, 43 (2d Cir), rev’d, 308 U.S. 338 (1939) (circuit court stated that Olmstead re-
moved case from application of fourth amendment). Although the Court in Olmstead sug-
gested that Congress had the authority to make wiretapped conversations inadmissible as
evidence, 277 U.S. at 465-66, Congress did not regulate the evidentiary uses of wiretapping.
See Goldsmith, The Supreme Court and Title III: Rewriting the Law of Electronic Surveillance, 74 J.
CRIM. L. CRIMINOLOGY 1, 11 & n.48 (1983). The Supreme Court, however, barred the use of
conversations wiretapped in violation of § 605 as evidence in the first Nardone case, Nardone v.
United States, 302 U.S. 379 (1937), despite the absence of any indication that Congress had
intended §605 to regulate wiretapping. See OoXAsmwh, .supra, at 11-12 *& n.5O.

The Court has frequently applied Nardone in search and seizure cases without mentioning
that Nardone did not involve a constitutional question. See, e.g., United States v. Crews, 445
U.S. 463, 470 (1980); United States v. Ceccolini, 435 U.S. 268, 274 (1978); Brown v. Illinois,
422 U.S. 590, 598-99 (1975); Wong Sun v. United States, 371 U.S. 471. 487-88, 491 (1963).

Furthermore, the Court in Nardone clearly recognized the strong parallels between the
federal wiretapping statute and the fourth amendment. When the Supreme Court reversed
the Nardone defendants’ convictions after their first trial, the Court stated:

Congress may have thought it less important that some offenders go unwhipped ofjustice
than that officers should resort to methods deemed inconsistent with ethical standards
and destructive of personal liberty. The same considerations may well have moved the
Congress to adopt § 605 as evoked the guaranty of privacy, embodied in the Fourth and
Fifth Amendments of the Constitution.

Nardone v. United States, 302 U.S. 379, 383 (1937). The Court’s reliance upon Sitverthome,
which did involve the fourth amendment, in the second Nardone case, see 308 U.S. at 340-41,
also demonstrates that the Court considered § 605 to parallel the fourth amendment.

Finally, in 1967. the Supreme Court overruled Olmstead in Katz v. United States. 389
U.S. 347 (1967), holding that wiretapping can be a search and seizure under the fourth
amendment.

1” Although the Supreme Court did not refer to the nature of the government’s evidence,
the government apparently introduced “testimony which had become accessible by the use of
unlawful ‘taps.’ . . .” United States v. Nardone, 106 F.2d 41. 44 (2d C:r),rev’d, 308 U.S. 338
(1939).

1̂ Nardone, 308 U.S. at 339. The Supreme Court had considered whether § 605 barred the
use of the actual conversations obtained from illegal wiretapping at an earlier point in the
case’s long procedural history. The defendants were first convicted in 1936. See United States
V. Nardone, 90 F.2d 630, 631 (2d Cir.), rev’d, 302 U.S. 379 (1937). On appeal, the Supreme
Court reversed the defendants’ convictions because the government had introduced into evi-
dence the conversations obtained from its illegal wiretaps. Nardone v. United States. 302
U.S 379 (1937). The government convicted the defendants a second time, using evidence
derived from the illegal wiretaps. See United States v. Nardone, 106 F.2d 41, 42 (2d C i r ) ,
rev’d, 308 U.S. 338 (1939). Following a second reversal by the Supreme Court, Nardone v.

144 COMMENTS [Vol. 75

The Court interpreted the statute to forbid the use of both the di-
rect and indirect fruits of illegal wiretapping. The Court concluded that
congressional regulation of wiretapping could only be effective if the
government could not use illegal wiretaps to gather evidence indi-
rectly.’^ The Court then cited an earlier Supreme Court decision,
Silverthorne Lumber Co, v. United States ,^^ as recognizing an independent
source exception to the exclusionary rule.^’ The passage containing the

United States, 308 U.S. 338 (1939), the defendants were convicted a third time. See United
States V. Nardone. 127 F.2d 521 (2d C:r), cert, denied, 316 U.S. 698 (1942). In affirming the
convictions, the Court of Appeals for the Second Circuit held that the illegal wiretaps “did
not, directly or indirectly, lead to the discovery of any of the evidence used upon the trial, or
to break down the resistance of any unwilling witnesses.” Id. at 523.

1̂ After explaining that Congress had prohibited “particular methods in obtaining evi-
dence” because they were ” ‘inconsistent with ethical standards and destructive of personal
liberty.’ ” the Court stated: “To forbid the direct use of methods thus characterized but to
put no curb on their full indirect use would only invite the very methods deemed inconsistent
with ethical standards and destructive of personal liberty.’ ” Nardone, 308 U.S. at 340 (quot-
ing Nardone v. United States, 302 U.S, 379, 384 (1937) (citation omitted)). The Court then
stated: “What was said in a different context in Silverthorne . . . is pertinent here: ‘The es-
sence of a provision forbidding the acquisition of evidence in a certain way is that not merely
evidence so acquired shall not be used before the Court, but that it shall not be used at all.’ ”
Nardone, 308 U.S. at 340-41 (citation omitted).

•̂•̂ 251 U.S. 385 (1920) In Silverthorne, federal authorities unlawfully searched the defend-
ants’ office and seized the defendants’ documents. Id. at 390. When the federal district court
granted the defendants’ motion for the return of the seized documents, the government issued
subpoenas for the production of the same documents. Id. at 391. The defendants refused to
obey the subpoenas and the trial court held them in contempt. Id.

The Supreme Court reversed the contempt citations, holding that the government could
not use their illegally gained knowledge about the documents to obtain them by subpoena.
Id. at 392. The Court restated the rule it had set out in Weeks, that the government cannot
use the actual evidence obtained in violation of the fourth amendment. Id. at 391-92. The
Court then rejected the government’s argument that it could use derivative evidence, evi-
dence that is the fruit of the government’s illegally acquired knowledge:

The [Government’s] proposition could not be presented more nakedly. It is that al-
though of course its seizure was an outrage which the Government now regrets, it may
study the papers before it returns them, copy them, and then may use the knowledge
that it has gained to call upon the owners in a more regular form to produce them; that
the protection of the Constitution covers the physical possession but not any advantages
that the Government can gain over the object of its pursuit by doing the forbidden act.
Weeks v. United States, . . . to be sure, had established that laying the papers directly
before the grand jury was unwarranted, but it is taken to mean only that two steps are
required instead of one. In our opinion such is not the law. It reduces the Fourth
Amendment to a form of words.

Id. at 391-92 (citation omitted).
The Court stated that the “essence” of the exclusionary rule is not just that the unlaw-

fully seized evidence “shall not be used before the Court but that it shall not be used at all.”
Id. at 392. The Court thus extended the suppression doctrine announced in Weeks both the
direct and indirect fruits of unconstitutional searches and seizures are inadmissible against a
defendant.

*̂ i The Court stated:
Here, as in ihe Silverthorne case, the facts improperly obtained do not “become sacred

and inaccessible. If knowledge of them is gained from an independent source they may
be proved like any others, but the knowledge gained by the Government’s own wrong
cannot be used by it” simply because it is used derivatively.

1984] A TTENUA TION EXCEPTION 145

language of attenuation immediately followed.̂ ^
The Court stated that trial courts should use a three-step procedure

to determine whether the government’s conduct tainted its evidence:
first, whether the government used illegal wiretaps; second, whether a
“substantial portion” of the government’s case is a product of the illegal
wiretaps; and third, whether the government’s evidence had an origin
independent of the illegal wiretaps.-‘^ Because the trial court had not
conducted this three-step examination of the government’s evidence, the
Court reversed the defendants’ convictions and remanded the case for
further proceedings. ‘̂̂

B. WONG SUN K UNITED STATES: ATTENUATION REVITALIZED

Courts and commentators initially did not interpret Nardone as an-
nouncing an attenuation exception to the exclusionary rule.-“” In fact,
until the 1963 Supreme Court decision in IVong Sun v. United States ^^^ the
few federal circuit courts that applied Nardone^ attenuation language
did so without clearly explaining the connection between attenuation
and the exclusionary rule.-‘ In Wong Sun, the Court elaborated upon the
attenuation exception, both clarifying and confusing the doctrine in the
process.

Wong Sun involved the admissibility of confessions and tangible evi-
dence against two defendants. The Supreme Court held that the gov-
ernment agents’ unlawful invasion of the first defendant’s home tainted

Id. at 341 {o,xotn% Silverthorne, 251 U.S. at 392).
^^ Id. The passage is quoted supra at text accompanying note 14.
23 Nardone, 308 U.S. at 341.
•̂ ‘* Id. at 342-43. Upon retrial, the defendants were again convicted and their convictions

were upheld. See supra note 18
‘^^ See, e.g. United States v. Nardone, 127 F.2d 521 (2d Cir.), cert, denied, 316 U.S. 698

(1942); United States v. Goldstein, 120 F.2d 485 (2d Cir. 1941); United States v. Weiss, 34 F.
Supp. 99 (S.D.N.Y. 1940); Bernstein, The Fruit of the Poisonous Tree: A Fresh Appraisal of the Civil
Liberties Involved in Wiretapping and Its Derivative Use, 37 I I I . L. R L . 99 (1942). 14 FLA. L.J.
373 (1940); 2 LA. L. REV. 759 (1940); 14 S. CAL. L. REV. 82 (1940); 18 T E X . L. R E . 504
(1940). Observers probably did not interpret Nardone as creating an attenuation exception
because Nardone involved a wiretapping statute that fell outside the scope of the fourth
axnenAxnent, see supra note 16, and fourth amendment exclusionary principles. See generally
Bernstein, supra.

‘^*^ 371 U.S. 471 (1963). The Supreme Court cited the attenuation language in only two
cases prior to Wong Sun. See Lanza v. New York, 370 U.S. 139 (1962) (legislative committee’s
questions of petitioner were based upon information known independent of illegal eavesdrop-
ping; Nardone distinguished as applying to criminal prosecutions); Costello v. United States,
365 U.S. 265 (1961) (grand jury’s questions of petitioner were based upon information known
prior to and independent of the illegal wiretaps).

-‘7 See, eg , Tindle v. United States, 325 F.2d 223 (D.C. Cir. 1963). r̂ r/. denied, 379 U.S. 883
(1964). Jackson v. United States, 313 F.2d 572 (DC. Cir. 1962); United States v Place, 263
F.2d627 (2dCir.),r^r/. denied sub norn., Canty v. United States, 360 U.S. 919 (1959); Gregory v.
United States, 231 F.2d 258 (D.C. Cir.),r^r/. denied, 352 U.S. 850 (1956).

146 COMMENTS [Vol. 75

the statements he made immediately thereafter.-^ T h e Court also ruled
that the government could not introduce the heroin seized from a third
person against the first defendant because the agents learned of the her-
oin’s existence from the statement unlawfully obtained from the first
defendant.’^^ The Court, however, held that the second defendant’s con-
fession, made several days after his arrest, was admissible because ”the
connection between the arrest and the statement had ‘become so attenu-
ated as to dissipate the taint.’ “̂ *̂

Although the Court in Wong Sun did not expressly recognize the
attenuation doctrine as a separate exception to the exclusionary rule,^’
the Court identified two elements that attenuation might include. First,
the Court appeared to define attenuation as the government’s nonex-
ploitation of its misconduct: if the government did not exploit its
wrongdoing, the connection between the government’s wrongdoing and
its discovery of evidence is attenuated, and the evidence is admissible.^^
Second, the Court suggested that the intervening act of the defendant’s
free will may be one source of attenuation.^^ The Court, however, did
not explain whether the exploitation formulation was a restatement of, a
replacement of, or an alternative to the attenuation doctrine suggested
in Nardone^”^ The Court also did not describe how the defendant’s free

28 Wong Sun, 371 U.S. at 486.
29 Id. at 488.
30 Id. at 491 (quoting United States v. Nardone, 308 U.S. 338, 341 (1939)). T h e defend-

ant, previously released on his own recognizance, voluntarily went to the police station a few
days after his arrest and gave a statement. Wong Sun, 371 U.S. at 491.

31 T h e Court cited Silverthorne and Nardone for different applications of the exclusionary
rule. id. at 487. but did not explain whether the two cases created two different exceptions to
the exclusionary rule or merely provided two different phrasings of the same exception. De-
spite the lack of clarity in the Court’s discussion o{ Nardone and Silverthorne, lower courts in-
ferred that the Court in Wong Sun either recognized Nardone as creating an attenuation
exception or created the exception itself in Wong Sun. See, e.g., United States v. Larios, 640
F.2d 938, 941 (9th Cir. 1981); D u r h a m v. United States. 403 F.2d 190. 196 (9th Cir. 1968).
vacated on other grounds, 401 U.S. 481 (1971) (per curiam); Rogers v. United States. 330 F.2d
535. 541 (5th Cir.), cert, denied, 379 U.S. 916 (1964).

32 Wong Sun, 371 U.S. at 488. T h e Court derived this formulation from J. M A G U I R E .
E IDENCE O G U I L T 221 (1959): “[T]he issue . . . is whether, granting establishment of the
primary illegality, the evidence to which instant objection is made has been come at by ex-
ploitation of that illegality or instead by means sufficiently distinguishable to be purged of the
primary taint.”

33 Wong Sun, 371 U.S. at 486. T h e Court stated that, under the circumstances of the
agents’ invasion of the first defendant’s home, “it is unreasonable to infer that (the defend-
ant’s] response was sufficiently an act of free will to purge the primary taint of the [agents’]
unlawful invasion.” Id. (footnote omitted). With this conclusion, the Court appeared to es-
tablish a rule that a defendant’s statement would be admissible if an act of the defendant’s
free will intervened between the government’s misconduct and the defendant’s statement,
and the defendant’s act of free will was sufficient to remove the taint of the government s
misconduct. T h e Court, however, did not elaborate upon the application of this standard.

3̂ * Although the Court distinguished between Nardone’s attenuation passage a n d Maguire’s
exploitation passage, it did not explain whether each formulation applied in different factual

1984] A TTENUA TION EXCEPTION 147

will attenuates an illegal connection. The Court did not resolve these
questions until 1975, in Brown v. Illinois.^^

C. BROWN V. ILLINOIS: CONSTRUCTING A FOUR-FACTOR TEST OF

ATTENUATION

In Brown v. Illinois, the Court reviewed an Illinois Supreme Court
decision that “”Miranda warnings in and of themselves” attenuated the
connection between the defendant’s illegal arrest and his statements to
the police.^^ The Court first held that Miranda warnings do not per se
break the causal connection between the police misconduct and a de-
fendant’s confession.^’ The Court then ruled that courts should consider
four factors in determining whether a ”confession is obtained by ex-
ploitation of an illegal arrest”:̂ ® first, whether the police gave Miranda
warnings;^^ second, *’the temporal proximity of the arrest and the con-
fession”;***̂ third, “the presence of intervening circumstances”;**’ and
fourth, ”the purpose of and fiagrancy of the ofî cial misconduct. . . .””̂ ^

situations T h e Court, however, applied Maguire’s formulation tc find the heroin inadmissi-
ble against the first defendant, 371 U.S. at 488, and applied Nardone’% attenuation doctrine to
affirm the receipt of the second defendant’s confession. Id. at 491.

35 422 U.S. 590 (1975). Between Wong Sun and Brown, the Supreme Court did not apply
Wong Sun’s statement of the attenuation exception but continued to rely upon the independ-
ent source exception. See Alderman v. United States. 394 U.S. 165 (1969) (Court cited Wong
Sun for the Maguire language but quoted Nardone for the requirement that the government
must establish the existence of an independent source); Harrison v. United States. 392 U.S.
219, 225 & n . l 2 (1968) (Court held that the government had not proved “that the defendant’s
testimony was not produced by the illegal use of his confessions at trial”); M u r p h y v. Water-
front Comm’n, 378 U.S. 52, 79 & n . l 8 (1964) (Court held that federal prosecutor may not use
witness’ testimony or its fruits when the witness testified under a state grant of immunity,
unless the government established “an independent, legitimate source for the disputed
evidence”).

36 422 U.S. 590, 597 (1975).
37 Id. at 603. T h e Court held that Miranda warnings do noi per se attenuate because Mi-

randa warnings are designed to safeguard only the fifth amendment right against self-incrimi-
nation against the coercive influences of custodial interrogation. Id. at 600. T h u s , while
Miranda warnings may ensure that a confession is admissible under the hfth a m e n d m e n t , they
may not sufliciently protect the defendant’s fourth amendment rights. Id. at 601. Even if a
statement is voluntary under the fifth amendment, the fourth amendment exclusionary rule
requires that the government prove that the statement is not connected to an illegal arrest.
Id. at 601-02. T h e Court stated that to aWow Afiranda warnings to cure an illegal arrest would
“substantially dilute[]” the exclusionary rule’s protection of the fourth amendment; the police
would know that Afiranda warnings would protect from suppression at trial all evidence de-
rived from a previously illegal arrest. Id. at 602.

38 Id. at 603.
39 Id. T h e Court stated that the giving oi Miranda warnings is “an important factor, to be

sure, in determining whether the confession is obtained by exploitation of an illegal arrest ”
Id

“^^^ Id. (footnote omitted).
•*! Id. at 603-04 (citing Johnson v. Louisiana, 406 U.S. 356 (1972) (intervening circum-

stance was the defendant’s appearance before a magistrate)).
•̂ 2 Brown, 422 U.S. at 604 (citing Wong Sun, 371 U.S. at 491). T h e Court identified the

148 COMMENTS [Vol. 75

The Court found that the connection between the illegal arrest and the
defendant’s confession was not attenuated because the defendant’s state-
ments followed his illegal arrest by less than two hours, no significant
circumstances intervened between the arrest and the confession, and the
police’s misconduct “had a quality of purposefulness.”**^ The Court ac-
cordingly found the defendant’s statements inadmissible.**”*

In Brown, the Court elaborated upon its discussion in Wong Sun of
confessions as tainted fruits of police misconduct. The Court clearly
stated in Brown that the question is whether the confession is sufficiently
an act of free will to remove the taint of the unlawful arrest.”*’* The
Court also used the attenuation and exploitation formulations inter-
changeably, thus implying that the two formulations were but different
expressions of the same attenuation exception.”**^ Although the Court in
Brown applied the four-factor test only to a defendant’s confession, later
courts, including the Supreme Court in United States v. Ceccolini ,’^’^ ex-
tended the test to cases in which defendants challenged evidence other
than confessions as the product of police misconduct.”*^

D. UNITED STATES V. CECCOLINI: THE LATEST ELABORATION UPON

THE ATTENUATION EXCEPTION

In United States v. Ceccolini, a police officer discovered evidence in an
illegal search that implicated the defendant in criminal activity, and the
officer informed a federal agent of his discovery.**^ Four months after
the illegal search, the federal agent interviewed an employee of the de-
fendant who had witnessed the illegal search.^^ T h e employee later tes-
tified before a grand jury about the police officer’s search. Largely on
the basis of the employee’s testimony, the defendant was indicted and

“purpose and flagrancy of the official misconduct” as a “particularly” relevant factor. Brown,
422 U.S. at 604.

••3 Brown, 422 U.S. at 604-05.
**•* Id at 604.
45 Id. at 599, 600, 602, 603.
46 Id. at 592, 602, 603.
47 435 U.S. 268 (1978).
48 See Ceccolini, 435 U.S. at 280-81 (Court used Brown factors to find attenuation of con-

nection between illegal search and discovery of witness); United States v. Jones. 608 F.2d 386
(9th Cir. 1979) (court used Brown factors to find attenuation of connection between illegal
arrest and discovery of tangible evidence). For further discussion of the misapplication of the
Brown factors, see infra note 53.

49 Ceccolini, 435 U.S. 268, 270 (1978). The police officer. Biro, was in the defendant’s store
talking with one of the defendant’s employees. Lois Hennessey, when Biro saw “an envelope
with money sticking out of it lying on the drawer of the cash register behind the counter.” Id.
Biro examined the envelope and found that it contained gambling slips. Id. Biro asked Hen-
nessey about the envelope, and she said that it belonged to the defendant. Id.

^^ Id. at 272.

1984] A TTENUA TION EXCEPTION 149

convicted of perjury.”’ The Supreme Court affirmed the defendant’s
conviction, finding that, although the search was unconstitutional, the
connection between the search and the witness’ testimony was
attenuated.^^

The four-factor test set out in Brown required courts to consider the
circumstances surrounding the unconstitutional procurement of a con-
fession to determine whether the connection between the confession and
the police misconduct was attenuated. In Ceccolini, the Court elaborated
upon the attenuation test set out in Brown, adding factors other than the
circumstances surrounding the acquisition of the evidence.^^ The first
factor the Court added was whether the evidence derived from the gov-
ernment’s misconduct was a witness’ testimony or another type of evi-
dence. The Court stated that its analysis would consider different
attenuation factors in a case involving an illegally discovered witness
than in a case involving a defendant’s confession or tangible evidence.^*
Second, the Court stated that the cooperation of an illegally discovered
witness is relevant to attenuation: if the witness, once discovered, freely
agrees to testify, the Court will likely find the connection between the
government’s misconduct and the witness’ testimony attenuated.””

51 Id Following the defendant’s conviction, the federal trial court suppressed the witness’
testimony as fruit of the illegal search. T h e court then granted the defendant’s motion to set
aside the guilty verdict, concluding that, without the witness’ testimony, there was insufficient
proof of the defendant’s guilt Id. at 270. T h e Court of Appeals for the Second Circuit af-
firmed the district court’s ruling. United States v. Ceccolini. 542 F.2d 136, 140-42 (2d Cir.
1976), rev’d, 435 U.S. 268 (1978).

52 Ceccolini, 435 U.S. at 279-80.
53 Id. at 275-79. T h e Court’s application of the Brown factors to a case involving an un-

lawfully discovered witness was improper. Although the Court in Brown did not expressly
state that the four-factor test could not be used with derivative evidence other than confes-
sions, the factors logically bear upon attenuation only with confessions. T h e passage of time,
the presence of intervening circumstances, and the flagrancy of the government’s misconduct
following an illegal arrest all could affect the government’s ability to extract a confession from
a defendant. If an examination of these factors revealed a strong connection between the
illegal arrest and a defendant’s confession, the confession should be suppressed.

None of the factors from Brown, however, affect the strength of the connection between
governmental misconduct and the discovery of a witness who later testifies against a defen-
dant. T h e passage of time or the occurrence of intervening events between the discovery of
the witness and the witness’ testimony does not weaken the connection between the miscon-
duct and the discovery of the witness. See Ceccolini, 435 U.S. at 289 (Marshall. J.. dissenting).
The absence of flagrant police misconduct likewise does not change the fact that the govern-
ment discovered the witness because of its misconduct. For further discussion of the applica-
tion of the Brown factors to the discovery of witnesses, see infra note 97.

54 Ceccolini, 435 U.S. at 275, 279.
55 Id. at 276-77. T h e Court’s argument for the relevance of the witness’ free will to the

determination of attenuation rested upon two questionable propositions. T h e Court first as-
serted that ‘*[t]he greater the willingness of the witness to freely testify, the greater the likeli-
hood that he or she will be discovered by legal means. . . .” Id. at 276. T h u s , because the
police need not conduct illegal searches to discover willing witnesses, the courts do not need to

150 COMMENTS [Vol. 75

The third consideration added by the court was that a finding of no
attenuation forever prevents an illegally discovered witness from testify-
ing about ”relevant and material facts,” thus frustrating the truthseek-
ing function of the trial.”^ Because of this “cost” to the search for truth,
the Court ruled that trial courts must find an especially close connection
between a witness’ testimony and the government’s misconduct before
excluding the testimony.”^ T h e fourth factor was whether suppressing
the testimony of an illegally discovered witness would deter police of-
ficers from engaging in the misconduct that uncovered the witness.^^
Thus, at least in applying the attenuation exception to witness testi-
mony, courts after Ceccolini must evaluate more than the causal connec-
tion between governmental misconduct and the testimony of a witness
discovered by that misconduct.^^ Courts also must consider the witness’

deter the police from such misconduct by suppressing the testimony of witnesses who are
discovered illegally. Id. Justice Marshall, in dissent, responded to the Court’s observation:

T h e somewhat incredible premise of this statement is that the police in fact refrain from
illegal behavior in which they would otherwise engage because they know in advance
both that a witness will be willing to testify and that he or she “will be discovered by
legal means.” . . . This reasoning surely reverses the normal sequence of events; the
instances must be very few in which a witness’ willingness to testify is known before he or
she is discovered. In this case, for example, the police did not even know that Hennessey
was a potentially valuable witness, much less whether she would be willing to testify,
prior to conducting the illegal search.

Id. at 288 (Marshall, J., dissenting).
Second, the Court stated that “[w]itnesses can, and often do, come forward and offer

evidence entirely of their own volition.” Id. at 276. Justice Marshall responded that, while
the Court’s observation was accurate, it was not relevant to the question of attenuation: the
independent source exception “would plainly apply to a witness whose identity is discovered
in an illegal search but who later comes to the police for reasons unrelated to the official
misconduct.” Id. at 286-87 (Marshall. J., dissenting).

56 Id. at 277. Justice Marshall replied in dissent that the exclusion of any evidence exacts
a cost from the search for truth. Because the suppression of illegally discovered tangible evi-
dence is as “costly” as the suppression of illegally discovered witness testimony, witness testi-
mony does not deserve special treatment under the attenuation exception. Id. at 288-89
(Marshall, J., dissenting).

T h e Court’s argument that the value of witness testimony justifies a less restrictive excep-
tion also is internally inconsistent. T h e Court was reluctant to exclude witness testimony
because preventing “knowledgeable witnesses” from testifying about “relevant and material
facts” seriously obstructs ” ‘the ascertainment of truth.’ ” Id. at 277 (quoting C. M c C o R –
MICK, LAW O F E V I D E N C E § 71 (1954)). At the same time, however, the Court recognized that
tangible evidence is likely to be more reliable than witness testimony. Id. at 278. T h e Court
thus favored witness testimony even though the reason for favoring witness testimony^—its
value to the search for truth—applied with greater force to tangible evidence, which received
no added protection from the application of the exclusionary rule.

57 Id. at 278.
58 Id. at 275, 280. For a discussion of the relationship between the attenuation exception

and the deterrent purpose of the exclusionary rule, see infra notes 96-118 and accompanying
text.

59 T h e Court in Ceccolini interpreted Nardone language as “mak|ing] it perfectly clear
. . . that the question of causal connection . . . cannot be decided on the basis of causation in
the logical sense alone, but necessarily includes other elements as well.” Ceccolini, 435 U.S. at

1984] A TTENUA TION EXCEPTION 151

willingness to testify and the “cost” and deterrent effect of suppressing
the testimony in determining whether the connection between the gov-
ernmental misconduct and the testimony is attenuated.

III. T H E M I S I N T E R P R E T A T I O N OV NARDONE’S A T T E N U A T I O N

LANGUAGE

As Part II of this Comment described, the Supreme Court derived
the attenuation exception to the exclusionary rule from a passage in Nar-
done V. United States. An examination of the attenuation passage, how-
ever, demonstrates that the Court in Nardone did not intend to create a
new exception to the suppression doctrine.

A. T H E INDEPENDENT SOURCE CONTEXT OF T H E ATTENUATION

PASSAGE

The context of the attenuation language \ Nardone reveals that the
Court intended to restate the exclusionary rule for derivative evidence
and the independent source exception set out in Silverthorne Lumber Co. v.
United States:

What was said in a different context in Silverthorne . . . is pertinent here:
“The essence of a provision forbidding the acquisition of evidence in a
certain way is that not merely evidence so acquired shall not be used
before the Court, but that it shall not be used at all.” . . .

Here, as in the Stlverthorne case, the facts improperly obtained do not
“become sacred and inaccessible. If knowledge of them is gained from an
independent source they may be proved like any others, but the knowledge
gained by the Government’s own wrong cannot be used by it” simply be-
cause it is used derivatively.^^

T h e a t t e n u a t i o n passage immediately followed a n d also showed the
Court’s adherence io Silverthorne independent source exception:

Sophisticated argument may prove a causal connection between informa-
tion obtained through illicit wire-tapping and the Government’s proof. As
a matter of good sense, however, such connection may have become so
attenuated as to dissipate the taint. . . . [T]he trial judge must give op-
portunity . . . to the accused to prove that a substantial portion of the case
against him was a fruit of the poisonous tree. This leaves ample opportu-
nity to the government to convince the trial court that its proof has an
independent origin.^’

T h e concluding sentence of this passage thus demonstrates that the

274. The Court conceded that “the particular knowledge to which [the illegally discovered
witness] testified at trial can be logically traced back to” the police officer’s unconstitutional
search of the defendant’s envelope. Id. at 279.

^ Nardone v. United States, 308 U.S. 338, 340-41 (1939) (quoting Silverthorne Lumber
Co. V. United States. 251 U.S. 385. 392 (1920)) (citations omitted).

6* Id. at 341 (emphasis supplied).

152 COMMENTS [Vol. 75

Court did not set out a new exception to the exclusionary rule. Rather,
the Court posed the same determinative question asked in Silverthorne:
does the government’s evidence have an independent origin?

Sandwiched between approving references to Silverthorne in-
dependent source exception, the attenuation exception merely referred
to the application of the independent source exception. The court of
appeals in \^ Nardone case had noted that the Supreme Court had not
defined the boundaries of the exclusionary rule for derivative evidence
or provided the procedures and burdens of proof for applying the sup-
pression doctrine to derivative evidence.^ ‘̂ The Supreme Court pro-
vided the guidance requested by the court of appeals, outlining the
proper application of the exclusionary rule and independent source ex-
ception in the attenuation passage and throughout the opinion.*’* Thus,
far from creating a new exception to the exclusionary rule, the Court’s
language in Nardone suggests that the Court merely acknowledged the
independent source exception and applied it to a case not then governed
by the fourth amendment.̂ “^

B. DIVINING T H E MEANING OF ATTENUATION

Although the Supreme Court demonstrated its adherence to the in-
dependent source exception throughout the Nardone opinion, the plain

62 Id.
63 Writing for the circuit court. Judge Learned Hand posed four questions regarding the

manner in which a trial court is to determine the admissibility of derivative evidence. In
Nardone, the Supreme Court answered each of Judge Hand’s questions.

The first two questions were: “Did the [unlawful wiretaps] taint all other evidence pro-
cured through them? . . . Did the burden rest upon the accused or the prosecution, to show
to what the taint extended?” United States v. Nardone, 106 F.2d 41. 43 (2d Cir.), revd, 308
U.S. 338 (1939) The Supreme Court answered these questions immediately after the attenu-
ation passage. The defendant must first prove that the government used illegal wiretaps and
that a “substantial portion” of the government’s case was a fruit of the illegal wiretapping. If
the government does not then prove that its evidence had an independent origin, the evidence
is tainted. United States v. Nardone, 308 U.S. at 341.

Judge Hand then asked: “How should the [taint] inquiry be conducted?” United States
V. Nardone. 106 F.2d at 43. Beyond specifying the burdens of production and the burdens of
proof described above, the Supreme Court did not require any set procedures for a taint
determination. Rather, the Court entrusted questions of the admissibility of evidence to the
discretion of trial judges. The Court stated: “Such a system as ours must, within the limits
here indicated, rely on the learning, good sense, fairness and courage of federal trial judges.”
Nardone v. United States, 308 U.S. at 342.

Finally, Judge Hand asked, “Was it too late to leave [the taint determination] until the
trial?” United States v. Nardone, 106 F.2d at 43. In response, the Supreme Court stated that
a defendant may raise during trial a claim that the government’s evidence is tainted by gov-
ernment misconduct if the trial judge is “satisfied that the accused could not at an earlier
stage have had adequate knowledge to make his claim.” Nardone v. United States, 308 U.S.
at 342.

64 See supra note 16 for an explanation of the inapplicability of the fourth amendment to
the Nardone case.

1984] A TTENUA TION EXCEPTION 153

meaning of the attenuation passage suggests an exclusionary rule excep-
tion different from the independent source exception. To fully under-
stand the Nardone opinion, therefore, it is necessary to more closely
examine the attenuation language.

The critical sentence is: “As a matter of good sense, however, such
connection [between information obtained through illegal wiretapping
and the government’s proof] may have become so attenuated as to dissi-
pate the taint.”^’^ “Attenuated” means: “Weakened in intensity, force,
effect, or value.”^^ “Dissipate” means: ”[T]o destroy or dissolve com-
pletely, undo, annul. . . .”^^ Using these definitions, the quoted pas-
sage suggests that if the connection between the government’s
misconduct and its evidence is weakened, then the evidence will not be
tainted and will be admissible. This result is inconsistent with the in-
dependent source exception, which requires evidence to have an origin
completely independent of the unlawful governmental conduct, not
merely proof that the unlawful connection is weakened.

The use of the verb “become” in the attenuation passage creates
another inconsistency with the independent source exception. “Be-
come,” as a linking verb,*̂ ^ suggests the passage of time.*̂ ^ The passage
of time between the discovery and use of evidence, however, does not
affect whether the government establishes an independent source for its
evidence.’^ Once the government learns facts through illegal means, it
will not unlearn those facts simply because time passes. Unless the gov-
ernment establishes an independent source, the unlawfully discovered
evidence is inadmissible.

One can reconcile the plain meaning of the attenuation passage
with the independent source context of the rest of the Nardone opinion
by imparting a legal, not physical, definition to “attenuated.” A court
will consider an independent source, as a matter of law, to weaken or
even break the connection between the government’s misconduct and its
evidence, despite the continued causal connection between the miscon-
duct and the evidence.^’ Thus, the independent source dissipates, by

65 Nardone, 308 U.S. at 341.
66 1 T H E O X F O R D ENGLISH DICTIONARY 550 (1970).
67 3 T H £ O X F O R D ENGLISH DICTIONARY 510 (1970).
68 B. EVANS & C. EVANS, A DICTIONARY O F CONTEMPORARY USAGE 56-57 (1957).
69 Id. at 277: “[L]inking verbs[‘] . . . most valuable contribution is in showing time

differences. . . . ”
70 See United States v. Ceccolini, 435 U.S. 268, 289 (1978) (Marshall, J.. dissenting) (pas-

sage of time between discovery and introduction of evidence is irrelevant to question whether
discovery of evidence was illegal). The passage of time may affect the admissibility of an
illegally obtained confession, as in Wong Sun v. United States, 371 U.S. 471 (1963), discussed
supra notes 28-34 and accompanying text. The relationship between the independent source
exception and illegally obtained evidence is discussed further at infra note 97.

71 The Supreme Court appeared to reconcile the independent source and attenuation Ian-

134 COMMENTS [Vol. 75

the time of trial, the taint created by the government when it illegally
discovered the evidence.

It is also possible to explain the attenuation and independent
source language in Nardone without reconciling their inconsistent mean-
ings. The Court affirmed the independent source exception but injected
a passage that, according to the passage’s plain meaning, suggests a dif-
ferent exception. The Court, however, did not explicitly state a new
exception in Nardone ̂ “^ and the Court did not recognize Nardone as the
source of an attenuation exception until at least a quarter of a century
later.’^ Thus, the Court’s use of the attenuation language in Nardone
likely had no doctrinal significance at the time but was only an idiosyn-
cratic turn of phrase, inappropriate to an explication of the contours of
the fourth amendment exclusionary rule.'”* T h e passage gained consti-

guage in several earlier cases. In Costello v. United States, 365 U.S. 265 (1961), the Court
held that the government had proven an independent source for its evidence, and held that
any connection between the illegal conduct and the evidence was “too attenuated to require
the exclusion” of the evidence. Id. at 280. Because the Court found an independent source, it
needed to go no further. Thus, the Court seemed to use the attenuation language to restate
its conclusion that an independent source existed.

Similarly, in United States v. W a d e . 388 U.S. 218 (1967), in which the Court held that
the sixth amendment guarantees defendants the right to counsel at post-indictment lineups,
the Court considered whether an improper lineup tainted an in-court identification of the
defendant. T h e Court stated that

the proper test to be applied . . . is that quoted in Wong Sun v. United States, 371 U.S.
471, 488, ” ‘[Wjhether, granting establishment of the primar)’ illegality, the evidence to
which instant objection is made has been come at by exploitation of that illegality or
instead by means sufficiently distinguishable to be purged of the primary taint.’
Maguire, Evidence of Guilt 221 (1959).”

Id. at 241. At the conclusion of the opinion, however, the Court stated that, on remand, the
lower court must “determine whether the in-court identifications had an independent
source. . . . ” / / . at 242. T h u s , the Court used the/ft^n^ii/n-Maguire formulation of attenua-
tion, see supra note 68 and accompanying text, and the independent source exception inter-
changeably as equivalent statements of the same exclusionary rule principle.

72 In contrast, the Court explicitly reaffirmed the independent source exception three
times in Nardone. Nardone v. United States, 308 U.S. 338, 341, 342 (1939).

73 Wong Sun v. United States, 371 U.S. 471 (1963), was the first case in which the Court
relied upon Nardone’s attenuation language for its holding. It is not clear whether the Court
in Wong Sun recognized Nardone as creating an attenuation exception, or whether the Court
used Nardone language to create the exception in Wong Sun. See supra note 31 and accompa-
nying text.

74 Although one can only speculate about why the Court used the phrases ” a t t e n u a t e d ”
and “dissipate the t a i n t ” in Nardone, there is evidence that the author of the Nardone opinion.
Justice Frankfurter, had a penchant for using odd and often inexplicable language in his
opinions. One biographer wrote:

Justice Frankfurter’s opinions are the repositories for some of the most exotic words in
the English language. His interest in words, their history and slightest gradations in
meaning, finds an outlet in his writings. It is not unusual to come across such brain-
teasers as “palimpsest” or “gallimaufry” in the middle of a technical discussion. He also
loves figures of speech that are colorful but at the same time meaningful. His references
range from the nautical PlimsoU line to Elizabethan sonnets.

H. T H O M A S , F E L I X F R A N K F U R T E R : S C H O L A R O N T H E B E N C H 343 (1960). T h o m a s also noted

1984] A TTENUA TION EXCEPTION 155

tutional significance only when later courts seized upon the curious
phrasing to assist their decisions not to extend the exclusionary

IV. T H E CONFLICT BETWEEN THE ATTENUATION EXCEPTION AND

THE FOURTH AMENDMENT EXCLUSIONARY RULE

The attenuation exception conflicts with the exclusionary rule’s
protection of fourth amendment rights. As originally conceived, the
right to the exclusion of illegally obtained evidence was part of the de-
fendant’s right to be free from unreasonable searches and seizures.’*^
Thus, when a court admits through the attenuation exception evidence
obtained in violation of the defendant’s fourth amendment rights, the
court perpetuates the violation of the defendant’s constitutional rights.
As currently applied, the exclusionary rule seeks to safeguard fourth
amendment rights by deterring unlawful police behavior. The attenua-
tion exception also undermines the deterrent effect of the exclusionary
rule by permitting the government to gain the benefit of the direct and
indirect fruits of its unlawful searches and seizures.

Frankfurter’s inclmation to “soar to unlimited heights in his use of allegorical or figurative
references in his opinions.” Id. at 345. For a poetic exploration of the most well-known exam-
ple of Frankfurter’s ability to confuse by metaphor—”the Plimsoli line of ‘due process,’ ”
Fikes V Alabama, 352 U.S. 191, 199 (1957) (Frankfurter, J., concurring)—see Y’ef, Frankfurter,
J., Concurring. . . ,1 H A R L. REV. 77 (1957).

More specifically. Professor Amsterdam has noted the confusing nature ofjustice Frank-
furter’s attenuation language:

Some causal connections are said, however, to ” ‘become so attenuated as to dissipate the
taint.’ ” Frankly, even the iron discipline that has led me single-mindedly almost to the
end of my black-letter statement of the law of the fourth amendment—even my fixed
purpose never to question whether black is grey or whether some monstrous anti-doctrine
leers behind the arras of the rules—fails me now in this last extremity. The subject of
derivative evidence, that land of poetry, of “fruits” and “dissipations” and their baccha-
nalian train, utterly resists my best efforts at cartography.

Amsterdam, Perspectives on the Fourth Amendment, 58 MiNN. L. REV. 349, 361 (1974) (footnotes
omitted).

7̂ For example, in Ceccolini, the Court recognized that the unlawfully discovered witness
testimony did not have an origin independent of the government’s misconduct. United States
V. Ceccolini, 435 U.S. 268, 273 (1978). Thus, the Court was able to find the evidence admissi-
ble only by using the malleable attenuation exception.

76 Professors Schrock and Welsh state that the fourth amendment
recognizes an exclusionary right in the defendant, a right that is conceptually and mor-
ally part and parcel with the right to be free from unreasonable searches and
seizures. . . . [T]he basic right is to be free from the entire transaction; the right to
exclusion and the right to be free from the original invasion are coordinate components
of that embracing right.

Schrock & Welsh, Up From Calandra: The Exclusionary Rule as a Constitutional Requirement, 59
MINN. L. REV. 251. 301 (1974) (empha.sis in original).

156 COMMENTS [Vol. 75

A. THE ATTENUATION EXCEPTION’S DENIAL OF A DEFENDANT’S

RIGHT TO EXCLUSION

/. The Personal Right to Exclusion

Although the fourth amendment does not grant an explicit right to
the exclusion of illegally obtained evidence, the exclusionary right is im-
plicit in the fourth amendment’s safeguard against governmental mis-
conduct. The fourth amendment prohibits every branch of the
government from violating a citizen’s personal security.^^ T h e police
and the courts are but different agents of a unitary government that
have inseparable roles in the same governmental conduct.’^ For exam-
ple, the police would have no reason to pursue wrongdoers unless courts
existed to finalize the police’s enforcement of the law; likewise, the
courts could not operate unless the police gathered evidence of wrongdo-
ing for the courts to adjudge.^^ Because the police and the courts par-
ticipate in the same governmental conduct, the courts can perpetuate
the police’s violation of a defendant’s fourth amendment rights by ad-

77 The fourth amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue,
but upon probable cause, supported by Oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be seized.

U.S. C O N S T , amend. IV. Although the police may be the only government officials who
actually conduct searches and seizures, but see Lo-Ji Sales v. New York, 442 U.S. 319 (1979)
(Town Justice issued warrant and participated in search), the fourth amendment directs all
branches of government to safeguard the right to be secure against unreasonable searches and
seizures. The courts, by their issuance of warrants and their evidentiary rulings, thus may
violate the security of the people from government misconduct. See United States v. Peltier,
422 U.S. 531, 558 n.l8 (1975) (Brennan, J., dissenting); LaFave, The Fourth Amendment in an
Imperfect World: On Drawing ”Bright Lines*’ and ‘Vood Faith”, 43 U. PiTT. L. R E . 307, 353
n.247 (1982).

78 Schrock & ^Nesh, supra note 76, at 300. Professor Amsterdam also has argued that, for
fourth amendment purposes, the government must be considered a single institution with a
singular goal:

[IJt is unreal to treat the offending office” as a private malefactor who just happens to
receive a government paycheck. It is the government that sends him out on the streets
with the job of repressing crime and of gathering criminal evidence in order to repress it.
It is the government that motivates him to conduct searches and seizures as a part of his
job, empowers him and equips him to conduct them. If it also receives the products of
those searches and seizures without regard to their constitutionality and uses them as the
means of convicting people who the officer conceives it to be his job to get convicted, it is
not merely toleratmg but inducing unconstitutional searches and seizures.

The admission of unconstitutionally seized evidence is therefore not, as the critics of
the exclusionary rule assume, merely something that happens after “a violation” of the
fourth amendment has occurred, and when it is too late to prevent, impossible to repair,
and senseless to punish the government for that violation. It is the linchpin of a function-
ing system of criminal law administration that produces incentives to violate the fourth
amendment.

Amsterdam, supra note 74, at 432 (footnotes omitted).

79 Schrock & Welsh, supra note 76, at 300.

1984] A TTENUA TION EXCEPTION 15 7

mitting at trial the evidentiary fruits of an unlawful search or seizure.^”
This ” u n i t a r y ” theory of a defendant’s right to exclusion was at the

core of the S u p r e m e Court’s creation of the exclusionary rule in Weeks v.
United States.^^ T h e Court stated in Weeks that the fourth a m e n d m e n t
limits the power of both courts a n d law enforcement officials a n d that
“the duty of giving to the [fourth a m e n d m e n t ] force a n d effect is obliga-
tory upon all intrusted . . . with the enforcement of the laws.”**^* T h e
Court also said that the fourth a m e n d m e n t protections would be “of no
v a l u e ” if private papers could be “seized a n d held a n d used in evidence
against a citizen accused of an offense. . . .”^^ Finally, the C o u r t held
that the trial court h a d violated the defendant’s constitutional rights by
refusing to return the seized papers: ” I n holding them a n d p e r m i t t i n g
their use upon trial, . . . prejudicial error was committed.”^”^ T h r o u g h –

^^ Professors Schrock and Welsh explain:

Search, seizure, and use are all part of one “evidentiary transaction,” and every such
transaction presupposes a court as well as a policeman. Because the court is integral to
the evidentiary transaction, it cannot insulate itself from responsibility for any part of
that transaction, and specifically not from responsibility for the manner in which evi-
dence is obtained. The only way the court can avoid consummating an unconstitutional
course of conduct in which, wittingly or unwittingly, it has been involved from the begin-
ning, is to abort the transaction by excluding the evidence. To admit the evidence is for
the court to implicate itself in the unconstitutional police misconduct and to violate the
Constitution.

Id. at 298-99 (footnote omitted) Professors Schrock and Welsh also advance a second, “con-
stitutionally] equal” right to exclusion. Id. at 309. They first contend that the principle of
judicial review established in Marbury v. Madison, 5 U.S. (I Cranch) 137 (1803), obligates all
courts to apply the “law of the land”—the Constitution—in the cases brought before them.
Schrock & Welsh, supra note 76, at 309. When a defendant alleges that the government has
violated the fourth amendment, courts must determine, as they must do with all challenged
governmental conduct, id. at 325, whether the particular search or seizure passes constitu-
tional muster. Id. at 308-09.

Second, Schrock and Welsh maintain that all defendants have a due process right not to
be deprived of “life, liberty, or property, without due process of law,” U.S. C O N S T , amend. V,
XIV, which means, conversely, that all such deprivations must be consistent with the com-
mands of the Constitution. Schrock & V^esh, supra note 76, at 361-62; Sunderland. Liberals,
Conservatives, and the Exclusionary Rule ^ 11 J. C R I M . L. & CRIMINOLOGY 343, 372 (1980) (“[T]he
due process clause of the fifth amendment would allow no deprivation of life, liberty, or
property except insofar as the commands of the Constitution are followed throughout the
proceedings “). Thus, when a court finds that a search or seizure violates the fourth amend-
ment, it must exclude the evidentiary fruits of the search or seizure. To admit the illegally
obtained evidence would be to approve a deprivation of the defendant’s liberty by means that
violated the Constitution. Schrock & Welsh, jw^w note 76, at 326. The court also would be
disregarding its judicial review duty to approve only that governmental conduct that con-
forms to constitutional requirements. Id. at 308-09, 351; see Sunderland, supra, at 375.

^ ‘ See supra note 1 for a discussion of Weeks and the origin of the exclusionary rule.

82 Weeks v. United States, 232 U.S. 383, 391-92 (1914).
83 Id. at 393
84 Id. at 398. Professors Schrock and Welsh maintain that the Court’s holding

makes it clear that the Weeks Court recognized two violations, one by the marshal and
one by the court, neither of which was regarded as “more” or “less” unconstitutional
than the other. And presumably these words leave no doubt that the reason the court

158 COMMENTS [Vol. 75

out the Weeks opinion, therefore, the Court obligated trial courts to en-
force fourth amendment rights. More specifically, the Court held that
trial courts violate the defendant’s fourth amendment rights by failing
to suppress illegally obtained evidence.**^

2, The Confiict Between the Right to Exclusion and the Attenuation
Exception

Assuming that a defendant has a constitutional right to the exclu-
sion of illegally obtained evidence,^^ the confiict between the exclusion-
ary right and the attenuation exception is apparent. The exclusionary
right requires the suppression of all evidence obtained in violation of the
fourth amendment. The independent source exception, but not the at-
tenuation exception, is consistent with this right to exclusion.

A court that applies the independent source exception finds that,
although the government violated the fourth amendment, the govern-
ment discovered the challenged evidence independent of the fourth
amendment violation.^^ Proof of an independent source allows the
court to admit the evidence without approving the fourth amendment
violation. Conceptually, the unlawful source and the independent
source run parallel to one another from the discovery of the evidence to
its offer at trial. The independent source, however, ends the fourth
amendment violation’s effect upon the admissibility of the evidence.
Evidence with an independent source, therefore, is admissible without
violating a defendant’s right to exclusion.^^

does not have the right to admit the evidence is that the defendant has a fourth amend-
ment right to its suppression.

Schrock & Welsh, supra note 76, at 301 (emphasis in original).
85 See Weeks, 232 U.S. at 398.
86 See supra notes 76-85 and accompanying text for an argument that suppression of ille-

gally obtained evidence is a personal constitutional right The Supreme Court currently does
not consider the exclusion of illegally obtained evidence “a personal constitutional right of the
party aggrieved.” United States v. Calandra, 414 U.S. 338,348 (1974). See infra notes 98-111
and accompanying text for a discussion of the Court’s position that the exclusionary rule is
designed primarily to deter police misconduct.

87 See, e.g , Lanza v. New York, 370 U.S. 139, 146-47 (1962) (state legislative committee’s
questions of defendant were based upon information learned independent of unlawful eaves-
dropping); Costello V. United States, 365 U.S. 265, 279-80 (1961) (grand jury’s questions of
defendant were based upon information learned independent of illegal wiretaps); United
States V. Houltin, 566 F.2d 1027, 1031 (5th Cr.), cert, denied, 439 U.S. 826 (1978) (identifica-
tions of challenged witnesses learned independent of illegal wiretaps); United States v. Ken-
nedy, 457 F.2d 63, 66 (10th Cir.), cert, denied, 409 U.S. 864 (1972) (search that produced
evidence was based upon valid warrant obtained independent of illegal arrest); Durham v.
United States, 403 F.2d 190, 195-96 (9th Cir. 1968), vacated on other grounds, 401 U.S. 481
(1971) (per curiam) (location of evidence learned from independent source, not from illegal
search).

88 See supra note 5. For cases illustrating the application of the independent source excep-
tion consistent with the personal right to exclusion, see United States v. Humphries, 636 F.2d

1984] A TTENUA TION EXCEPTION 159

The attenuation exception, in contrast, denies a defendant’s exclu-
sionary right. Courts that apply the attenuation exception concede that
the government’s misconduct led to the discovery of the evidence admit-
ted against the defendant.®^ The courts acknowledge but refuse to give
“force and effect”‘-̂ to the defendant’s fourth amendment rights when
the government ofTers the evidentiary fruits of unlawful searches and
seizures.̂ ^ Instead, courts admit illegally obtained evidence because the
connection between the government’s misconduct and its discovery of
the evidence has become weakened by the passage of time,^^ human
volition,^^ the government’s good intentions,^’* or serendipity.^^ Finally,
in an even more “attenuated” application of the attenuation exception,
the courts admit illegally obtained evidence when the illegal connection
is “broken” by the perceived need for relevant evidence or by the per-
ceived futility of deterring police misconduct.^^

Because the attenuation exception abridges the constitutional right
to exclusion, courts should no longer use the attenuation exception to

1172, 1179 (9th Cir. 1980), cert, denied, 451 U.S. 988 (1981) (evidence gained through lawful
surveillance, not from unlawful detention); Houltin, 566 F.2d at 1031; Kennedy, 457 F.2d at 66;
Durham, 403 F.2d at 195-96; McGarry’s, Inc. v. Rose, 344 F.2d 416, 418-19 (1st Cir. 1965)
(agents had prior knowledge of illegally seized documents and had issued a summons for
them before the illegal seizure); Bynum v. United States, 262 F.2d 465 (D.C. Cir. 9bd,),afrer
remand, 274 F.2d 767 (D.C. Cir. 1960), r^r/. denied, 379 U.S. 908 (1964) (defendant’s first con-
viction reversed where government used as evidence set of defendant’s fingerprints obtained
during illegal detention; defendant’s conviction upon retrial affirmed where government used
set of fingerprints in existence at time of illegal detention).

89 For example, in United States v. Miller, 666 F.2d 991, 995 n.3 (5th dr.), cert, denied, 456
U.S. 964 (1982), the court stated: “We do not address the independent source argument
because the government admits . . . that the leads to the witnesses were developed in fact
from information found in the [illegally seized] diary.” See also United States v. Ceccolini,
435 U.S. 268, 273 (1978); United States v. Jones, 608 F.2d 386, 391 (9th Cir. 1979); United
States V. Carsello, 578 F.2d 199, 203 (7th Cir.),<r^r/. denied, 439 U.S. 979 (1978); United States
V. Bacall, 443 F.2d 1050, 1057 (9th Civ.), cert, denied, 404 U.S. 1004 (1971).

^ Weeks v. United States, 232 U.S. 383, 392 (1914).
^ ‘ See cases cited supra note 89.
92 See, e.g, Ceccolini, 435 U.S. at 275, 279; United States v. One 1979 Mercury Cougar

XR-7, 666 F.2d 228, 230 (5th Cir. 1982).
93 See, e.g, Ceccolini, 435 U.S. at 276-79; Miller, 666 F.2d at 99^-96,Jones, 608 F.2d at 391;

Carsello, 578 F.2d at 203 & n.3; Houltin, 566 F.2d at 1032.
94 See, e.g, Ceccolini, 435 U.S. at 219-m,Jones, 608 F.2d at 391; Carsello, 578 F.2d at 204 &

n.4.
95 Bacall, 443 F.2d at 1057; United States v. Williams, 436 F.2d 1166, 1170-71 (9th Cir.

910),cert denied, 402 U.S. 912 (1971).
96 See, e.g, Ceccoltni, 435 U.S. at 211-m,Jones, 608 F.2d at 391; Carsello, blH F.2d at 204. In

fact. Justice Powell, concurring in Brown v. Illinois, 422 U.S. 590 (1975), so injected policy
considerations into the determination of attenuation that he converted the question of attenu-
ation from an examination of the factual connection between misconduct and the discovery
of evidence into a balancing test of the social desirability of the exclusionary rule: “The no-
tion of the ‘dissipation of taint’ attempts to mark the point at which the detrimental conse-
quences of illegal police action becomes so attenuated that the deterrent effect of the
exclusionary rule no longer justifies the cost.” Id. at 609 (Powell, J., concurring).

160 COMMENTS [Vol. 75

admit illegally obtained evidence. Instead, courts should apply the ex-
clusionary rule solely in conjunction with the independent source excep-
tion, allowing the government to use illegally obtained tangible or
verbal evidence’*^ only when discovered independent of the govern-
ment’s misconduct.

B. THE ATTENUATION EXCEPTION’S FRUSTRATION OF THE

DETERRENT EFFECT OF THE EXCLUSIONARY RULE

The Supreme Court currently considers that the exclusionary rule’s
“prime purpose is to deter future unlawful police conduct and thereby
effectuate the guarantee of the Fourth Amendment against unlawful
searches and seizures. . . .”̂ *̂ As a result, the Court has not applied the
exclusionary rule where the Court believes that the suppression of evi-

97 The exclusionary rule and independent source exception, formulated in cases involving
tangible evidence, do not precisely fit cases involving illegally obtained verbal evidence. For
example, the governmental misconduct may only directly produce the discovery or detention
of a defendant; any subsequent statement is derivative evidence. The intervention of a de-
fendant’s volition, however, may make the statement independent of the misconduct. A de-
fendant’s volition can be the independent source of the statement because a defendant’s fifth
amendment right against self-incrimination protects a defendant from making incriminating
statements even if illegally arrested and detained. Therefore, if, after an illegal arrest, a de-
fendant voluntarily waives his fifth amendment right and makes a statement, the defendant’s
volition truly is a source independent of the government’s misconduct. See Wong Sun v.
United States, 371 U.S. 471 (1963) (analyzed under independent source exception, defend-
ant’s decision to voluntarily make a statement three days after illegal arrest would constitute
independent source).

The fact that a defendant’s statement is voluntary under the fifth amendment, however,
would not necessarily make the statement admissible under the fourth amendment The
Court stated in Brown v. Illinois that the voluntariness of a statement under the fifth amend-
ment was only a “threshold requirement” for determining admissibility under the fourth
amendment. 422 U.S. at 601-02, 604. Thus, courts should use the four factors set out in
Brown bearing upon the attenuation of the connection between misconduct and a defendant’s
statement to determine whether a defendant’s volition is an independent source.

Although illegally discovered witness testimony and defendants’ statements are both ver-
bal evidence, courts should not consider the volition of an illegally discovered witness as an
independent source for the witness’ testimony. Because of the right against self incrimination,
the illegal discovery of a defendant’s identity will not guarantee the acquisition of a voluntary’
confession. The fifth amendment, however, does not protect non-defendant witnesses from
making statements that only incriminate a defendant. Unless illegally discovered witnesses
have particular reasons not to cooperate with the police and cannot be persuaded by immu-
nity grants or threats of contempt, the witnesses wilt testify voluntarily against the defendant.
See, e.g., Ceccolini, 435 U.S. at 279. The discovery of the witness, therefore, is tantamount to
obtaining the testimony either through the witness’ cooperation or the government’s persua-
sion. Id. Under exclusionary rule principles, therefore, the government’s misconduct, not the
witness’ volition, is the source of the witness’ testimony. Id. at 287-88 (Marshall, J., dissent-
ing). Thus, courts should evaluate the testimony of illegally discovered witnesses as they eval-
uate tangible evidence: the witness’ testimony should be inadmissible unless the government
discovered the witness independent of its misconduct.

98 United States v. Calandra, 414 U.S. 338, 347 (1974).

1984] A TTENUA TION EXCEPTION 161

dence will not deter police misconduct.*-̂ ^ The Court also has refused to
apply the exclusionary rule where the Court perceives that the “costs”‘^
of exclusion outweigh the “incremental” deterrent benefits of
exclusion.’^’

Assuming that the Court correctly believes that deterrence is the
primary purpose of the exclusionary rule,’^^ the Court misunderstands
the deterrent potential of the suppression doctrine. Consequently, the
Court’s application of the attenuation exception undermines the deter-
rent purpose of the exclusionary rule.

/. The Court’s Misunderstanding of the Deterrent Effiect of Exclusion

The Court, at least in its application of the attenuation exception,
interprets the exclusionary rule’s deterrent effect too narrowly. In Cec-
colint., for example, the Court assessed whether the suppression of a cer-
tain type of illegally obtained evidence—witness testimony—would
deter a particular type of fourth amendment violation—an uninten-
tional search for tangible evidence.’^^ The Court’s conception of the

99 E.g., Stone v. Powell, 428 U.S. 465, 493 (1976) (Court states that application of exclu-
sionary rule in federal habeas corpus proceedings will not deter misconduct by state police);
United States v. Janis, 428 U.S. 433, 454 (1976)(Court states that use of exclusionary rule in
federal civil tax proceeding will not deter misconduct by state police).

lOU The “costs” weighed by the Court include: the loss of reliable and probative evidence.
Stone V. Powell, 428 U.S. at 490; “deflect[ing] the truthfinding process and often free[ing] the
guilty.” id . “generating disrespect for the law and administration ofjustice,” id. at 491; “im-
peding the role of the grand jury,” Calandra, 414 U.S. at 352; and hampering the enforcement
of the law. Jams, 428 U.S. at 447. For a discussion of the Court’s balancing in Ceccolini, see
supra note 92.

‘̂ > E.g , Stone v. Powell, 428 U.S. at •^9Z-9’^Janis, 428 U.S. at 453 54; Calandra, 414 U.S.
at 351-52. The Court has created a “no-lose ” formula for determining whether the exclusion-
ary rule’s deterrent effect justifies suppressing evidence. In Jams, for example, the Court
stated that, if extending the exclusionary rule to civil proceedings will deter police
misconduct,

the additional marginal deterrence . . . surely does not outweigh the cost to society of
extendmg the rule to that situation. If, on the other hand, the exclusionary rule does not
result in appreciable deterrence, then, clearly, its use in the instant situation is unwar-
ranted. Under either assumption, therefore, the extension of the rule is unjustified.

Jams, 428 U.S. at 453-54. For a discussion of balancing interests in applying the exclusionary
rule, see Kamisar, Does (Did) (Should) the Exclusionary Rule Rest on a “Principled Basis” Rather
thanan ‘EmpiricalProposition^’.^ 16CRElGHroN L. R E . 565, 600, 642-50 (1982-1983) (argumg
that balancing is impossible or determined by predisposed values, and that the fourth amend-
ment itself already embodies a balance of interests).

102 The suppression doctrine’s primary purpose is the protection of fourth amendment
rights, which include a right of exclusion. See supra notes 77-85 and accompanying text. De-
terrence is but a means to accomplish the purpose of the exclusionary rule. See Schrock &
Nchh, supra note 76, at 359 n.272 (“[D]eterrence is ‘only a hoped-for effect of the exclusionary
rule, not its ultimate objective.’ “) (quoting Calandra, 414 U.S. at 356 (Brennan, J.,
dissenting)).

1̂ 3 The Court stated in Ceccolini, 435 U.S. at 279-80, that
[t]here is . . . not the slightest evidence to suggest that [the policeman] Biro entered the

162 COMMENTS [Vol. 75

suppression doctrine, as stated in Ceccolim, is flawed in two respects.
First, the exclusionary rule is not designed to deter individual of-

ficers from committing specific types of violations.’^”* The exclusionary
rule seeks to deter in a broader way. Rather than attempting to educate
each individual police ofiftcer who violates the fourth amendment, the
exclusionary rule seeks to instruct law enforcement officers as a group
that fourth amendment violations will produce no benefit.’^^ More spe-
cifically, the exclusionary rule seeks to regulate governmental conduct
through ”systemic deterrence,’* that is, ”through a police department’s
institutional compliance with judicially articulated fourth amendment
standards.”^”^^ Thus, the extent of the exclusionary rule’s deterrent ef-
fect depends upon the extent to which law enforcement officers under-
stand that fourth amendment violations produce no benefit.^^^ The
exclusionary rule’s success as a deterrent and the Court’s decision to ap-
ply the exclusionary rule, therefore, does not and should not depend
upon the particular misconduct of a particular police officer.’^^

Second, the exclusionary rule does not seek to deter by punishing
individual officials for their misconduct. “̂̂^ Rather, the exclusionary

shop or picked up the envelope wilh the intent of finding tangible evidence bearing upon
an illicit gambling operation, much less any suggestion that he entered the shop and
searched with the intent of finding a willing and knowledgeable witness to testify against
respondent. Application of the exclusionary rule in this situation could not have the
slightest deterrent effect on the behavior of an officer such as Biro.
•̂ “* See Amsterdam, Jtt/’/'(7 note 74, at 431; Kamisar, JU/JW note 101, at 659; %QY2L%, Assault on

the Exclusionary Rule: Good Faith Exceptions and Damage Remedies., 73 J. C R I M . L . & CklMINOL-
OGV 875, 881-82 & n.36 (1982).

1^^ See Peltier, 422 U.S. at 556-58 & nn.15-18 (Brennan, J., dissenting); Kamisar, jw/̂ r̂ note
101, at 660-61 & n.531; Oaks, Studying the Excltiswnary Rule in Search and Seizure^ 37 U. C H I . L .
R t v . 665, 709-12 (1970); Schlag, jw/’ra note 104, at 882 & n.39.

106 Mertens »Sc Wasserstrom, Foreword: The Good Eaith Exception to the Exclusionary Rule: Der-
egulating the Police and Derailing the Law, 70 G E O . L.J. 365, 394 (1981); see Kamisar, supra note
101, at 660-61; The Exclusionary Rule Bills: Hearings on S 10/, S 751, and S. 1995 Before the
Subcornm. on Griminal Law of the Senate Gomrn. on the fudictary, 97th Cong.. 1st & 2d Sess. 21-23
(1982) (statement of Stephen H. Sachs, Attorney General of Maryland) [hereinafter cited as
E.xcluswnary Rule Hearings].

’07 See O3is, supra note 105, at 710.
108 ‘phe Court’s focus in Geccolini upon the particular circumstances of the fourth amend-

ment violation to determine the deterrent effect of suppression mav result in courts admitting
illegally obtained evidence whenever the police found the evidence inadvertently. See, e.g.,
Jones^ 608 F.2d at 391 (exclusionary rule would not deter “under these circumstances'” be-
cause police were not looking for specific evidence they discovered during an unlawful
search). Because, in every case in which the admissibility of evidence is challenged, the possi-
bility of suppression did not in fact deter the police from conducting the illegal search or
seizure, courts will always have grounds for holding that suppression will not deter the spe-
cific misconduct committed in the particular circumstances of the case. Accord Schlag, ju/̂ ra
note 104, at 901 & n.99 (focusing on particular facts of a case may reflect the type of viola-
tions “susceptible to deterrence” but will reduce general deterrent effect of suppression
doctrine).

*̂̂*̂ See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
388, 416 (1971) (Burger, C.J., dissenting) (“The [exclusionary] rule does not apply any direct

1984] A TTENUA TION EXCEPTION 163

rule creates a disincentive to conduct illegal searches and seizures.”” By
devaluing the evidence obtained through misconduct, the exclusionary
rule removes one reason for conducting illegal searches or seizures.”’

2. The Attenuation Exception Undermines the Deterrent Effect of Exclusion

If the suppression of evidence removes an incentive to violate the
fourth amendment,”-^ the attenuation exception encourages govern-
mental misconduct. The attenuation exception communicates to law
enforcement officers that fourth amendment violations will not affect
the admissibility of illegally obtained evidence if the government uses
remotely derivative evidence,*’^ the government unintentionally discov-
ers evidence,”‘* or the government discovers a witness who agrees to tes-
tify against the defendant.”^ Even if the government did not try to
obtain evidence in an ”attenuated” fashion, the government knows that

sanction to the individual official whose illegal conduct results in the exclusion of evi-
dence. . . .”); c.f Geccolini, 435 U.S. at 280; Michigan v. Tucker, 417 U.S. 433, 447 (1974);
Amsterdam, jw/Tf? note 74, at 431; Schlag, jẑ r̂̂ z note 104, at 881-82 »& n.36.

»>0 See Elkins v. United States, 364 U.S. 206, 217 (I960) (”[The exclusionary rule’s] pur-
pose is to d e t e r ^ t o compel respect for the constitutional guaranty in the only effectively
available way—by removing the incentive to disregard it.”); Amsterdam, supra note 74, at
431-32; Kamisar, supra note 101, at 659 n.529, 661, & n.539; Schlag, supra note 104, at 882.

‘•^ See Amsterdam, Ji^/ra note 74, at 431-32.
‘ ‘-̂ The exclusionary- rule’s success as a deterrent is oft-debated but uncertam. T h e Court

has, at different times, doubted the deterrent effect of suppression, Btvens, 403 U.S. at 416-18
(Burger, C.J., dissenting), assumed that suppression deters,yi^wj, 428 U.S. at 453, and de-
clined to consider suppression’s potential success as deterrence. Galandra., 414 U.S. at 348 n.5.
The Court’s reluctance to reach a conclusion about the deterrent efficacy of suppression is
understandable considering the available evidence on suppression as a deterrent First, it is
doubtful that the deterrent effect of suppression can be empirically established. Morris, The
Exclusionary Rule, Deterrence and Posner’s Economic Analysis of Law.. 57 W A S H . L . R t . 647, 653-57
(1982); Ozk%, supra note 105, at 16, see also Kamisar, jw/>ra note 101, at 621 & n.3O4.

Second, the evidence that does exist is, not surprisingly, mixed. T h e empirical evidence
tends to conclude that suppression does not deter. See, e.g., Kamisar, ĵ w/?ra note 101, at 657 &
n.532; Loewy, The Fourth Amendment as a Device for Protecting the Innocent, 81 MIC:H. L . R E W
1229, 1267 & n.l70 (1983). Anecdotal evidence, on the other hand, generally indicates that
suppression directly and systemically deters misconduct. See, e.g., Kamisar, .fu/ra note 101, at
618-20, 660-61 & nn.300-01; Morris, supra, at 652 n.22; E.xcluswnary Rule Hearings, supra note
106, at 21-23 (statement of Stephen H. Sachs, Attorney General of Maryland).

Third, commentators argue that, whatever its precise deterrent effect, suppression is the
most effective deterrent; alternative responses to governmental misconduct deter either too
much or too little. Loewy, supra, at 1265-66; Exclusionary Rule Hearings, supra note 106, at 22
(statement of Stephen H Sachs, Attorney General of Maryland); j^^///jo Kamisar, jw/’ra note
101, at 618-20; Schlag, supra note 104, at 907-13. Finally, some argue that abolishing the
exclusionary rule, or creating new exceptions to the rule, would encourage misconduct,
whatever may be the exclusionary rule’s current succe.ss in discouraging misconduct. See
Kamisar, j/z/ra note 101, at 662-64; Schlag, ju/rry note 104, at 901-02.

> 1J See, e.g., Garsello, 578 F.2d at 203.
‘»•* See, e.g., Geccolini, 435 U.S. at 2mJones, 608 F 2d at 391.
I ”^ See, e.g., Geccolini, 435 U.S. at 279; United States v. Miller, 666 F.2d 991, 996 (5th Cir.),

cert, dented, 4b6 U.S. 964 (1982).

164 COMMENTS [Vol. 75

the courts will be more likely to find attenuation if the challenged evi-
dence is relevant and probative. “**

Finally, the attenuation exception gives the government an incen-
tive to continue an investigation after it has committed a fourth amend-
ment violation. Although any evidence the government initially
discovers will be inadmissible, the length of an investigation and any
intervening circumstances may attenuate the connection between the
initial misconduct and any subsequently discovered evidence.”^ The
attenuation exception’s many incentives to engage in misconduct thus
reduce the potential deterrent effect of the exclusionary rule.”^ Because
the attenuation exception erodes the protections of the fourth amend-
ment, it should be abandoned.

V. C O N C L U S I O N

The attenuation exception to the exclusionary rule derives from a
passage in an opinion that otherwise appears only to restate the in-
dependent source exception. To borrow from Justice Frankfurter’s
description of another phrase, the attenuation language ‘ V a s never used
. . . to express a technical legal doctrine or to convey a formula for
adjudicating cases. It was a literary phrase not to be distorted by being

116 See Geccolim, 435 U.S. at 277-78, 280.
• ” In Garsello, for example, police officers unlawfully seized personal business records be-

longing to the defendant Agents from the Federal Bureau of Investigation and the Internal
Revenue Service (IRS) examined the records and used them in their investigations of the
defendant. IRS agents interviewed individuals listed in the records, and these individuals led
the agents to other people and businesses associated with the defendant. With the coopera-
tion of some of these people, the IRS obtained the evidence introduced against the defendant
at trial. Garsello, 578 F.2d at 200-03. The circuit court affirmed the finding of attenuation,
even though a “causal nexus” existed between the initial misconduct and the challenged evi-
dence, and even though the government did “exploit” the misconduct in conducting its inves-
tigation. Id. at 202, 203. The court held that the link between the misconduct and the
evidence was insignificant, and that only the agents’ “initiative and ingenuity” and the coop-
eration of informants maintained the improper connection. Id. at 203 & n.3.

‘ ‘^ Professor Kamisar argues that the Court wrongly creates exceptions to the exclusionary
rule on the ground that the “cost” of suppression in a particular case outweighs the incremen-
tal deterrence gained through suppression. See Kamisar, jw/ra note 101, at 664. Each new
exception reduces the general deterrent effect of suppression by communicating to law en-
forcement officials that any one of several loopholes will later admit illegally obtained evi-
dence: “Although the police may not be thinking about any particular one of [the]
permissible collateral uses of unlawfully-seized evidence, they may well go ahead with the
unlawful search, confident that in one way or another it is likely to pay off.” Merteris &
Wasserstrom, .fw/Ttf note 106, at 388. Multiple exceptions not only create multiple incentives
to violate constitutional rights, Kamisar, fu/rt? note 101, at 664, they complicate the exclu-
sionary rule and make it more difficult for the police to follow the constitutional require-
ments. See Schlag, supra note 104, at 901-02. The cumulative effect of the many exceptions,
therefore, is to deprive the suppression doctrine of any deterrent effect il may have had. See
Kamisar, ju/Ttf note 101, at 664.

1984] A TTENUA TION EXCEPTION 165

taken from its context.””^ Once taken from its context, the attenuation
exception has violated the personal constitutional right of defendants to
the suppression of illegally obtained evidence, and has undermined the
deterrent purpose of the exclusionary rule. As the Supreme Court ini-
tially required for illegally obtained evidence, therefore, the attenuation
exception should not be used at all.

BRENT D . STRATTON

‘ 1̂ Pennekamp v. Florida, 328 U.S. 331, 353 (1946) (Frankfurter, J., concurring) (referring
to Justice Holmes’ “clear and present danger” test).

U.S. Supreme Court

Wong Sun v. United States, 371 U.S. 471 (1963)

Wong Sun v. United States

No. 36

Argued March 29 and April 2, 1962

Restored to calendar for reargument June 4, 1962

Reargued October 8, 1962

Decided January 14, 1963

371 U.S. 471

Syllabus

In a trial in a Federal District Court without a jury, petitioners were convicted of fraudulent
and knowing transportation and concealment of illegally imported heroin, in violation of 21
U S C §174 Although the Court of Appeals held that the arrests of both petitioners without

Syllabus Case

Wong Sun v. United States, 371 U.S.
471 (1963)

U.S.C. §174. Although the Court of Appeals held that the arrests of both petitioners without
warrants were illegal, because not based on “probable cause” within the meaning of the
Fourth Amendment nor “reasonable grounds” within the meaning of the Narcotics Control
Act of 1956, it affirmed their convictions, notwithstanding the admission in evidence over
their timely objections of (1) statements made orally by petitioner Toy in his bedroom at
the time of his arrest; (2) heroin surrendered to the agents by a third party as a result of
those statements; and (3) unsigned statements made by each petitioner several days after
his arrest, and after being lawfully arraigned and released on his own recognizance. The
Court of Appeals held that these items were not the fruits of the illegal arrests, and,
therefore, were properly admitted in evidence.

Held:

1. On the record in this case, there was neither reasonable grounds nor probable cause for
Toy’s arrest, since the information upon which it was based was too vague and came from
too untested a source to accept it as probable cause for the issuance of an arrest warrant;
and this defect was not cured by the fact that Toy fled when a supposed customer at his
door early in the morning revealed that he was a narcotics agent. Pp. 371 U. S. 479-484.

2. On the record in this case, the statements made by Toy in his bedroom at the time of his
unlawful arrest were the fruits of the agents’ unlawful action, and they should have been
excluded from evidence. Pp. 371 U. S. 484-487.

3. The narcotics taken from a third party as a result of statements made by Toy at the time
of his arrest were likewise fruits of the unlawful arrest, and they should not have been
admitted as evidence against Toy. Pp. 371 U. S. 487-488.

Page 371 U. S. 472

4. After exclusion of the foregoing items of improperly admitted evidence, the only proofs
remaining to sustain Toy’s conviction are his and his codefendant’s unsigned statements;
any admissions of guilt in Toy’s statement require corroboration; no reference to Toy in his
codefendant’s statement constitutes admissible evidence corroborating any admission by
Toy, and Toy’s conviction must be set aside for lack of competent evidence to support it.
Pp. 371 U. S. 488-491.

5. In view of the fact that, after his unlawful arrest, petitioner Wong Sun had been lawfully
arraigned and released on his own recognizance and had returned voluntarily several days
later when he made his unsigned statement, the connection between his unlawful arrest
and the making of that statement was so attenuated that the unsigned statement was not
the fruit of the unlawful arrest and therefore it was properly admitted in evidence P 371

the fruit of the unlawful arrest and, therefore, it was properly admitted in evidence. P. 371
U. S. 491.

6. The seizure of the narcotics admitted in evidence invaded no right of privacy of person or
premises which would entitle Wong Sun to object to its use at his trial. Pp. 371 U. S. 491-
492.

7. Any references to Wong Sun in his codefendant’s statement were incompetent to
corroborate Wong Sun’s admissions, and Wong Sun is entitled to a new trial, because it is
not clear from the record whether or not the trial court relied upon his codefendant’s
statement as a source of corroboration of Wong Sun’s confession. Pp. 371 U. S. 492-493.

288 F.2d 366, reversed and cause remanded.

Oral Argument – April 02, 1962 (Part 1)

Oral Reargument – October 08, 1962

Oral Argument – April 02, 1962 (Part 2)

Oral Argument – March 29, 1962

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