NE: Consent search of defendant’s house was exploitation of prior illegality; it was objectively unreasonable

The police conducted an illegal search of defendant’s house even with a signed consent form, and they exploited the prior illegality. Essentially, this search was clearly and objectively illegal. State v. Gorup, 279 Neb. 841, 782 N.W.2d 16 (2010):

We conclude that the district court incorrectly relied on the fact that Gorup did not see, and the police did not confront him with, the evidence Simones discovered during his illegal search before Gorup gave his consent to search again. This was not an intervening circumstance. Accepting this reasoning would permit officers to validate illegal searches and seizures by simply never confronting suspects with evidence they have illegally discovered or seized before obtaining their consent to search again. Our conclusion is not altered because Simones advised Gorup that he could refuse consent to search.

Both the Seventh Circuit and the Ninth Circuit have rejected the argument that a signed consent form, which advises suspects of their right to refuse consent, is a sufficient intervening circumstance to purge the taint of an illegal action when it is obtained shortly after the illegal action: “This would effectively eviscerate the exclusionary rule’s goal of deterring police misconduct because it would give officers who recently violated a suspect’s constitutional rights a chance to grant themselves a free pass by uttering a few magic words and encourage–rather than discourage–investigatory shortcuts.” And the Ninth Circuit further recognized that permitting such advisements to purge the taint of the prior illegal search would be contrary to the U.S. Supreme Court’s rejection of an analogous argument in Brown v. Illinois.

. . .

The State argues that the detectives, while mistaken in their belief that their conduct was legal, did not engage in flagrant misconduct. But the State fails to recognize that flagrant misconduct includes investigatory conduct that results in an obvious Fourth Amendment violation.

[17] We agree with federal courts that have stated the purpose and flagrancy of the official misconduct is the most important attenuation factor because it is directly tied to the exclusionary rule’s purpose–deterring police misconduct. …

. . .

[19] In this case, the court’s reliance on whether the detectives knew their conduct was illegal missed the mark because it applied a subjective standard. Obviously, if the detectives had admitted that they knew the search was illegal, their misconduct would have been flagrant. But, here, the detectives were never asked whether they subjectively believed the search was legal. And even if law enforcement officers do not subjectively know that their conduct is illegal, they are also chargeable with knowing when their conduct is an obvious violation of the Fourth Amendment under an objective standard of reasonableness.

. . .

Our adherence to solid legal moorings requires that we reverse the trial court’s ruling. For 40 years, U.S. Supreme Court case law has prohibited this type of search. In 1969, the U.S. Supreme Court held in Chimel v. California that a search incident to arrest is limited to the arrestee’s person and the area within his or her immediate control. The following year, the Court specifically held that a warrantless search of a house was invalid as a search incident to an arrest when the defendant was arrested on the front steps of his house. We applied both of these decisions in a 1982 case to conclude that a warrantless search of a house was illegal. Many courts have long held that an arrest must take place within a suspect’s residence to justify the search of the residence as an incident to the arrest, even in cases preceding Chimel.