CA9: Suppression not the remedy for a Wilson v. Layne violation

In a big drug and stolen property raid in Guam, the search scene turned into a real clusterf, and it was admittedly almost completely mismanaged with the press camped out in front of the house and victims of the thefts coming by to claim their property. Ultimately, the press was invited to the back of the property onto the curtilage to look at a marijuana patch. Assuming a Wilson v. Layne violation occurred by inviting the press back there, the court decides that suppression was not the remedy. United States v. Duenas, 691 F.3d 1070 (9th Cir. 2012):

Assuming that a Fourth Amendment violation occurred, we, like the district court, reject the Duenases’ contention that suppression is the appropriate remedy. Because Wilson was a Bivens action, the Supreme Court was not required to address the application of the exclusionary rule. 526 U.S. at 608. The Court expressly declined to decide “whether the exclusionary rule would apply to any evidence discovered or developed by the media representatives.” Id. at 614 n.2. We, similarly, have not previously decided whether the exclusionary rule applies to evidence obtained by police who have violated the Fourth Amendment by allowing the media to intrude into the location of the search.

A Fourth Amendment violation does not automatically trigger the exclusionary rule. Rather, the rule applies only where the benefit of deterrence outweighs the rule’s “‘substantial social costs.'” Davis v. United States, 131 S. Ct. 2419, 2427 (2011) (quoting United States v. Leon, 468 U.S. 897, 907 (1984)). Application of the exclusionary rule is a fact-intensive inquiry. See United States v. $186,416.00 in U.S. Currency, 590 F.3d 942, 950 (9th Cir. 2010) (citation omitted). “To apply the exclusionary rule to [a] unique set of facts … we must consider the rule’s dual purposes: to deter similar police misconduct in the future and to preserve the integrity of the courts.” Id. (citing Dunaway v. New York, 442 U.S. 200, 217-18 (1979)).

The Eleventh Circuit has weighed the benefits and costs of applying the exclusionary rule in an analogous context. See United States v. Hendrixson, 234 F.3d 494, 496-97 (11th Cir. 2000). In Hendrixson, police were accompanied by a television reporter while searching a defendant’s residence for methamphetamine. Id. at 496. The reporter “arrived after the search was in progress and did not move, touch or handle anything in the residence.” Id. Although the Eleventh Circuit found that the media’s presence violated the Fourth Amendment, it declined to suppress the evidence found during the search. Id. The court emphasized that the purpose of the warrant clause of the Fourth Amendment is to prevent the police from conducting “general searches” that go beyond the scope of the warrant. Id. at 497 (citing Maryland v. Garrison, 480 U.S. 79, 84 (1987)). In Hendrixson, the police did not exceed the parameters of the warrant, because the “media presence did not expand the scope of the search,” the search was “actually carried out by the police themselves,” and there was “no allegation that the reporter aided the search; he did not touch, move, or handle anything in the residence.” Id. at 497. The court suggested that the deterrence goals of the exclusionary rule in such circumstances could be better served through 42 U.S.C. § 1983 or Bivens actions. Id. at 497 n.4.

We agree with the Eleventh Circuit that where the media were present, but did not discover or develop any of the evidence later used at trial, the evidence need not be excluded. Here, the media did not expand the scope of the search beyond the warrant’s dictates; nor did the media assist the police, or touch, move, handle or taint the admitted evidence in any way. Because the GPD complied with the terms of the warrant and the media did not disturb any evidence later admitted, the more appropriate remedy here, as the Eleventh Circuit concluded in Hendrixson, is a Bivens or a 42 U.S.C. § 1983 action.

Well, if Hudson doesn’t permit exclusion for a knock-and-announce violation, why should this? Yes, the Fourth Amendment was violated, but how did it aid the police in the search beyond good PR? Bad form, clearly. Fourth Amendment violated, clearly. Yet no suppression required. Thank you SCOTUS.