CA1: DoJ MMJ appropriations rider does not implicate the exclusionary rule

The DoJ appropriations rider* that limits spending any federal funds of medical marijuana-type cases does not permit the court of appeals enjoining the prosecution by interlocutory appeal. That does not implicate the grand jury’s power to consider the case, nor does it implicate the exclusionary rule. United States v. Bilodeau, 2022 U.S. App. LEXIS 2383 (1st Cir. Jan. 26, 2022):

Bilodeau’s claim of intertwinement presumes that a finding in his favor on his motion to suppress evidence gathered pursuant to the challenged search would also bar use of that evidence in deciding whether the appropriations rider precludes his prosecution. Neither party cites any precedent directly bearing on this presumption. As the government points out, however, the exclusionary rule is rarely if ever applied outside the context of a criminal trial. Grand juries, for example, can consider evidence gathered in an illegal search. See United States v. Calandra, 414 U.S. 338, 350-52, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974). The exclusionary rule embodies no “personal constitutional right,” Stone v. Powell, 428 U.S. 465, 486, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976); rather, it is employed to deter police overreaching by denying the government the ability to prove guilt in a criminal proceeding, see Hudson v. Michigan, 547 U.S. 586, 591, 126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006). The rule serves as a “last resort, not our first impulse.” Id.

Here, the issue giving rise to appellate jurisdiction concerns the DOJ’s compliance with a limitation in an appropriations bill. We see nothing about the nature of such an issue that would require a court assessing that issue to close its eyes to otherwise competent evidence that even a grand jury could consider. For that reason, resolution of Bilodeau’s Fourth Amendment challenge to the search of his home and warehouse could have no effect on the resolution of the supposedly intertwined question raised in this appeal. We therefore decline his request to entertain now his challenge to the district court’s denial of his suppression motion and request for a Franks hearing.

And this hail Mary makes bad law beyond its facts. Now wait for the appeal after judgment, if any.


  • Consolidated Appropriations Act of 2021, Pub. L. 116–260 § 531 (Dec. 27, 2020).
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