N.D.Cal.: 404(b) and the exclusionary rule

N.D.Cal. wrestles with 404(b) and the exclusionary rule. United States v. Felix, 2014 U.S. Dist. LEXIS 156232 (N.D. Cal. October 31, 2014). See Treatise § 9.02. A thoughtful opinion, without really resolving the issue, yet:

Defendant cites no binding authority to support his contention that the Fourth Amendment governs the admissibility of any evidence that the government seeks to admit in its case-in-chief, even for the limited purposes of FRE 404(b). Neither of the district court authorities cited by defendant decided or addressed any dispute whether the exclusionary rule applies to evidence of a prior arrest admitted under FRE 404(b). See United States v. Arreola-Beltran, 827 F. Supp. 2d 1188, 1197 (D. Idaho 2011) (where the defendant’s motion to suppress was denied by the state court in his prior state court criminal proceeding, the district court determined, after conditionally excluding evidence of prior bad acts or convictions under FRE 403 and 609(a), that collateral estoppel law did not bar consideration whether the evidence seized during the defendant’s prior arrest should be suppressed); United States v. Teaupa, 2013 U.S. Dist. LEXIS 31540, 2013 WL 870077 (D. Haw. Mar. 7, 2013) (denying the defendant’s motion to suppress, or in limine, to exclude statements he previously made to a Hawaii County police officer after an arrest on a bench warrant unrelated to the current proceedings, without mention whether the government challenged applicability of the exclusionary rule to evidence of the prior arrest).

The government argues persuasively that the exclusionary rule does not bar evidence introduced for limited purposes under FRE 404(b) because exclusion of defendant’s prior arrest evidence in this unrelated criminal proceeding would not have an appreciable deterrent effect. See Pennsylvania Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 363, 118 S. Ct. 2014, 141 L. Ed. 2d 344 (1998) ( the exclusionary rule “does not ‘proscribe the introduction of illegally seized evidence in all proceedings or against all persons,’ but applies only in contexts ‘where its remedial objectives are thought most efficaciously served'”) (quoting Stone v. Powell, 428 U.S. 465, 486, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976); United States v. Calandra, 414 U.S. 338, 348, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974)). The government cites Ninth Circuit authority recognizing that the Fourth Amendment does not bar admission of a prior arrest and search, even if illegal, where there is no suggestion of any bad faith or collusion by the officers involved in the prior and the instant cases, and where the officers in the prior arrest did not have the instant proceedings in their “zone of primary interest.” United States v. Basinger, 60 F.3d 1400, 1407 (9th Cir. 1995) (citing United States v. Lopez-Martinez, 725 F.2d 471, 476 (9th Cir. 1984)) (internal citation and quotation marks omitted). Here, there is nothing to suggest that “the first investigation and prosecution might be planned to ensure the success of the second.” Lopez-Martinez, 725 F.2d at 476. As in Lopez-Martinez, the exclusionary rule does not bar the introduction of evidence of defendant’s prior 2012 arrest in this proceeding because the “additional measure of deterrence that might be provided by the exclusion in the [instant] trial of statements from the [2012] arrest is too small to outweigh the cost to society of the loss of relevant and probative evidence in [this] proceeding.” Id.

. . .

The government has not addressed defendant’s objection to admission of the prior conviction records pursuant to FRE 404(b). Because defendant pled to simple possession of a controlled substance in the state court proceeding, the prior conviction is admissible pursuant to FRE 404(b) only to show knowledge, but not intent to distribute. See United States v. Ramirez-Robles, 386 F.3d 1234, 1242-43 (9th Cir. 2004) (prior “user quantity conviction can only be used to prove that Ramirez-Robles knew what methamphetamine is and how to identify it.”). Similarly, defendant’s prior conviction for possession of a concealed firearm is admissible under FRE 404(b) for the limited purpose of showing knowledge of firearms, but not intent to use firearms in furtherance of drug trafficking.

E. Testimonial Evidence

Defendant represents that the government seeks to prove up the 2012 prior conduct through the testimony of six different witnesses, but the government has not, in opposition to the instant motion, identified which witnesses are expected to testify on which disputed issues pursuant to FRE 404(b). The parties are expected to meet and confer on disputed testimony that is not governed by the scope of the pretrial orders. Any further disputes regarding the testimonial evidence will be addressed after trial commences. No further written motions may be filed without leave of court and the court will not entertain any such requests over the weekend.