Chapter 10

The Exclusionary Rule and

Entrapment
Exclusionary Rule
 Provides that evidence that is obtained as a result of a
violation of the Fourth Amendment prohibition on
unreasonable searches and seizures is inadmissible in
a criminal prosecution to establish a defendant’s guilt

 Derivative evidence
 evidence that is discovered as a result of the unlawfully seized
evidence is also excluded from evidence
 fruit of the poisonous tree

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Exclusionary Rule (cont.)
 Wolf v. Colorado: incorporated the Fourth Amendment to
the states

 Elkins v. United States: eliminated the silver platter

doctrine

 Mapp incorporated the exclusionary rule

 United States v. Calandra: the exclusionary rule is “a

judicially created remedy designed to safeguard Fourth
Amendment rights generally through its deterrent effect
rather than a personal constitutional right of the party
aggrieved”

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Arguments For
 Justice Tom Clark, Mapp v. Ohio
 Elkins v. United States
 Supreme Court Justice Louis Brandeis, dissent in
Olmsted v. United States
 The cost of excluding evidence has led police
departments to stress the importance of police
professionalism
 A relatively small proportion of cases lead to the
acquittal of defendants based on the exclusion of
evidence

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Arguments Against

 The exclusionary rule is a “judicially created remedy;” judges are

free to limit or even abolish the exclusionary rule
 Chief Justice Warren Burger, Bivens v. Six Unknown Named
Agents
 Decreases respect for the judiciary by requiring courts to take the
side of defendants rather than victims
 Undermines the purpose of a criminal trial
 Evidence is suppressed regardless of whether the police
committed a technical violation of the law or engaged in a blatant
violation
 Has no impact on the police in those instances in which the police
seize a gun or drugs in order to remove the contraband from the
streets and have no intention of pursuing a criminal prosecution

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Alternatives
 Civil tort suits for damages against police officers who
have engaged in unreasonable searches and seizures and
the government
 Criminal prosecution of the police for violation of civil
liberties
 Police administrative procedures subjecting officers to
penalties
 A civilian review board that examines cases of suspected
abuse
 A judicial hearing conducted prior to the prosecution of
the criminal charge

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Invoking the Exclusionary Rule
 Initial steps
 the first step in challenging the reasonableness of a search to
file a pretrial motion to suppress
 most states and the federal courts place the burden of proof on
the defendant when the search or seizure is based on a warrant
 the burden of proof is shifted to the government when the
police act without a warrant

 If the trial judge decides to admit the evidence at trial

and the defendant is convicted, the defense may appeal
and raise the issue of whether the judge made the correct
decision in admitting the evidence

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Invoking (cont.)
 Chapman v. California
 harmless error
 requires that the prosecution establish beyond a reasonable
doubt that there is no reasonable probability that the evidence
influenced the outcome of the trial
 Habeas corpus
 Alderman v. United States
 standing
 whether the defendant has both a subjective and an objectively
reasonable expectation of privacy in the area that is subject to
the search
 burden of proof typically is placed on the defendant

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Exceptions

 Based on a determination that the modest amount of

additional deterrence to be gained from excluding the
evidence from trial is outweighed by the cost to society of
excluding the evidence from trial

 Collateral proceedings

 Attenuation

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Good Faith Exception

 Objectively reasonable
 Justice Byron White, dissent in Stone v. Powell
 United States v. Leon: Court recognized the good
faith exception
 Massachusetts v. Sheppard
 Illinois v. Krull
 Arizona v. Evans
 Illinois v. Rodriguez

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Other Exceptions
 Independent source
 Silverthorne Lumber Company v. United States
 Murray v. State

 Inevitable discovery
 Murray v. State

 Impeachment
 Walder v. United States
 Harris v. New York
 Illinois v. James
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Legal Equations

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Effectiveness
 Thomas Davies
 “nonprosecution and/or nonconviction” of cases by the
police, prosecutors, and judges based on the illegal seizure
of evidence is “in the range of 0.6% to 2.35% “ of all felony
arrests
 while these “loss rates” are not “trivial,” that they do not
amount to a “major impact” on the criminal justice system

 Davies’ findings are backed by Peter Nardulli and

others
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Entrapment

 Sorrells v. United States: 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”

 The government’s inducement of an otherwise innocent

individual to commit a crime

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Arguments For
 Certain crimes are difficult to investigate and to prevent
without using informants

 Undercover techniques can result in a large number of

arrests without the expenditure of substantial resources

 Individuals will be deterred from criminal activity by the

threat of government involvement in the crime

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Arguments Against

 The government may “manufacture crime” by

individuals who otherwise may not engage in
criminal activity

 The government may lose respect by

engaging in law breaking

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More Arguments Against
 Informants who are employed by the government to
infiltrate criminal organizations may be criminals whose
own illicit activity often is overlooked in exchange for
their assistance

 Innocent individuals are approached in order to test their

moral virtue by determining whether they will engage in
criminal activity

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Law of Entrapment
 Balance the need of law enforcement to rely on
undercover techniques against the interest in
ensuring that innocent individuals are not
pressured or tricked into illegal activity

 Sherman v. United States

 subjective

 objective

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Subjective Test for Entrapment
 Focuses on the defendant
 Asks whether the accused possessed the criminal intent
or “predisposition” to commit the crime or whether the
government “created” the crime
 “But for” the actions of the government, would the
accused have broken the law?
 Two steps
 determine whether the government induced the crime
 evaluate whether the defendant possessed a “predisposition” to
commit the crime with which he/she is charged
 Followed by the federal government and most states

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Objective Test for Entrapment
 Focuses on the conduct of the government

 Justice Felix Frankfurter, dissent: the crucial

question is “whether police conduct revealed in the
particular case falls below standards to which
common feelings respond, for the proper use of
governmental power”

 Followed by the Model Penal Code and a minority

of states

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Due Process Test for Entrapment
 The government’s conduct was so unfair and outrageous
that it violates the Due Process Clause of the Fifth and
Fourteenth Amendments to the U.S. Constitution, and it
therefore would be unjust to convict the defendant

 U.S. Supreme Court rejected this test in United States v.

Russell

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Legal Equations

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Invoking Entrapment
 Affirmative defense

 In jurisdictions that follow the subjective approach, the

defendant generally is required to establish the fact of
inducement by a government agent after which the
burden then shifts to the government to counter the
defense by establishing the defendant’s “predisposition”
beyond a reasonable doubt

 In jurisdictions that follow have adopted the objective

test the burden of production of evidence and persuasion
is placed on the defendant

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