Defendant was arrested for a sex offense, and, while in jail, his landlord kicked him out and his car was towed away and impounded by the police. The police used the towing company’s consent to search the GPS in his vehicle which corroborated the victims. Defendant moved to suppress the search of the GPS and prevailed. The state then got a search warrant for the GPS from a different judge without mentioning the prior suppression order and basing the request on independent evidence. The search warrant was issued and defendant moved to suppress again. This one was denied. The first suppression order based on a consent was not law of the case to the second search warrant based on an independent showing of probable cause. Yes, it would have been better to have told the issuing magistrate about the prior suppression order, but it isn’t fatal here. People v. George, 2017 COA 75, 2017 Colo. App. LEXIS 698 (June 1, 2017):
[*59] By any reckoning, the better practice would be for the requesting officer to tell the issuing magistrate about a prior unlawful search or suppression order. Even so, the failure to do so does not necessarily mean that the fruits of the earlier unlawful search impermissibly motivated law enforcement. And the independent source doctrine looks no deeper into motive.
[*60] In issuing the warrant, the magistrate was unaware of the prior unlawful search or suppression order. Of course with such knowledge, the magistrate might well have examined the warrant application more rigorously. See Krukowski, 100 P.3d at 1227 (“[P]rior illegal entry . . . is material to a trial court’s assessment of the officer’s credibility and the independent source doctrine in the context of a motion to suppress.”).
[*61] When conducting the suppression hearing, however, the trial court knew the whole story. One might wonder whether concealment from the magistrate suggests broader mendacity of the investigator. Even if so, the court could have considered concealment in assessing the investigator’s testimony that the fruits of the unlawful search had not motivated him to seek the warrant. Indeed, defense counsel argued during the second hearing that the investigator was intentionally circumventing the trial court by submitting the warrant to the uninformed magistrate.
[*62] Despite all of this, George argues that allowing law enforcement to seek a warrant after an adverse suppression ruling “promotes the very misconduct [the independent source doctrine] is designed to discourage.” But the independent source doctrine does not discourage police misconduct. Rather, looming large over this issue is the objective of the independent source doctrine. It has been described as follows: Murray v. United States, 487 U.S. 533, 537, 108 S. Ct. 2529, 101 L. Ed. 2d 472 (1988) (alteration in original) (quoting Nix v. Williams, 467 U.S. 431, 443, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984)).
[T]he interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position than they would have been in if no police error or misconduct had occurred …. When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation.
[*63] Still, some may see following the independent source doctrine as at odds with the deterrence that results from applying the exclusionary rule. After all, were the Fourth Amendment to categorically deny law enforcement a second bite at the apple, officers might be more cautious; here, the investigator might have sought a warrant rather than relying on the consent of a third party who did not share George’s privacy interest. But in Murray, the Supreme Court struck the balance differently. And the Supreme Court rejected the argument that the independent source doctrine “applies only to evidence obtained for the first time during an independent lawful search.” Id.
[*64] Nor should one hastily conclude that falling back on the independent source doctrine comes without a price. Law enforcement agents relying on the independent source doctrine risk suppression of evidence, and they increase their burden from one of probable cause to the “much more onerous burden of convincing a trial court that no information gained from the illegal entry affected either the law enforcement officers’ decision to seek a warrant or the magistrate’s decision to grant it.” Id. at 540. So, the availability of this do-over does not necessarily immunize law enforcement from the consequences of earlier incautious action.
[*65] In the end, before the towing company gave its consent to examine the GPS device, the investigator was prepared to seek a warrant. Treating his mistaken belief in consent and the resulting suppression order as forever barring the investigator from doing so would place him in a worse position. Under binding Supreme Court precedent, that we cannot do.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)