AL adopts new crime exception to exclusionary rule

When being arrested, defendant pulled away from officers in his room and dove for his bed and reached under a pillow. Officers thought he was going for a gun, and a melee ensued. He was charged with assault and resisting arrest. Even if the arrest was unlawful, the new crime exception is adopted. His offense against the officers occurred after the alleged illegal entry [which it probably wasn’t anyway]. Picogna v. State, 2022 Ala. Crim. App. LEXIS 8 (Feb. 11, 2022):

Stated succinctly, the new-crime exception to the exclusionary rule provides that, when a defendant commits a new and distinct crime in response to a Fourth Amendment violation, the exclusionary rule does not bar evidence of the new crime. Courts have advanced different rationales for the exception. Some have held that a defendant does not have a reasonable expectation of privacy in his or her actions in the presence of police after a Fourth Amendment violation. See United States v. Waupekenay, 973 F.2d 1533, 1537 (10th Cir. 1992). Some view the new-crime exception as an extension of the attenuation-from-taint exception, finding that the commission of the new crime is a “free and independent action” that dissipates the taint. People v. Townes, 41 N.Y.2d 97, 102, 359 N.E.2d 402, 406, 390 N.Y.S.2d 893, 897 (1976). And others focus on the purpose of the exclusionary rule, finding that “the limited objective of the exclusionary rule is to deter unlawful police conduct — not to provide citizens with a shield so as to afford an unfettered right to threaten or harm police officers in response to the illegality.” Brocuglio, 264 Conn. at 788, 826 A.2d at 152. Finally, some courts apply a combination of rationales, as this Court did in Hornsby, supra, in finding that the defendant’s actions over the course of a month in plotting with a jail inmate to dispose of the marijuana evidence against him dissipated the taint even if the initial search and seizure of the marijuana was illegal, but also noting that “[s]ound public policy dictates that the law should discourage and deter the incentive on the part of accused persons to commit other new and separate crimes.” 517 So. 2d at 639. See also Doke, 171 P.3d at 240-41 (applying “[t]he attenuation rational for admitting evidence of a new crime committed in response to police misconduct” but also pointing out that ‘[a] rule that would allow a person whose right to be free from unreasonable searches and seizures was allegedly violated to respond with acts of violence would be contrary to the public interest”).

The third rationale is particularly persuasive as a basis for applying the new-crime exception in this case. As the Connecticut Supreme Court explained [ State v. Brocuglio, 264 Conn. 778, 826 A.2d 145 (2003)] ….