Andrew Ferguson, Constitutional Culpability: Questioning the New Exclusionary Rules (Florida Law Review forthcoming), Abstract:

This article addresses the questions left unanswered by the Supreme Court’s recent exclusionary rule cases. The Hudson-Herring-Davis trilogy presents a new and largely unexamined doctrinal landscape for Fourth Amendment suppression hearings. Courts, litigators, and scholars are only now assessing what has changed on the ground in trial practice.

Once an automatic remedy for any constitutional violation, the exclusionary rule, now necessitates a separate and more searching analysis. Rights and remedies have been decoupled, such that a clear Fourth Amendment constitutional violation may not lead to the exclusion of evidence. Instead, it now leads to an examination of the conduct of the law enforcement officer – conduct that if not sufficiently “culpable” does not require exclusion. This is new territory for lawyers and courts used to an automatic linkage between constitutional wrongs and constitutional remedies. It is an unexplored reality that requires new tactical choices and an understanding of the consequences of the Supreme Court’s new standard for exclusion.

This article approaches the Roberts Court’s exclusionary rule reasoning on its own terms. It questions the doctrinal moves of the Supreme Court focused on “culpability” and raises questions about its implication for trial practice. It then offers several suggested responses for defense counsel and prosecutors approaching this new reality.

Politico: DNI: Analysts can’t eavesdrop on domestic calls without ‘proper legal authorization’ by Alex Byers.

Defendant fled from a bank robbery and ditched his vehicle on the side of the road. His argument that the police needed a search warrant to search it was found “to be without merit,” to put it mildly. He also abandoned it on the side of the road. United States v. Bentley, 2013 U.S. App. LEXIS 12010 (3d Cir. June 14, 2013).* [Sounds like defense counsel ordered to appeal, and this isn't even close.]

Defendant’s post-conviction petition stated a colorable claim for IAC for defense counsel’s failure to preserve a search issue for appeal. Carter v. State, 2013 Tenn. Crim. App. LEXIS 502 (June 14, 2013).*

A claim there is a Fourth Amendment right in a prison cell is manifestly frivolous. Laurensau v. Romarowics, 2013 U.S. App. LEXIS 11924 (3d Cir. June 13, 2013).*

Warscapes: Cryptogams & the NSA by John Sifton of Human Rights Watch:

The first thing I did after I heard about the highly classified NSA PRISM program two years ago was set up a proxy server in Peshawar to email me passages from Joyce’s Finnegans Wake. A literary flight of fancy. I started sending back excerpts from Gerard Manley Hopkins poems.

The cantankerous Seymour Hersh was my inspiration. He had told me about the program in a clipped expletive-filled summary in the summer of 2011: “They’re scooping fucking everything, man! Phones, Internet, the whole works.”

Defendant’s buying a one-way train ticket with cash is not probable cause to search his luggage. Cash was suppressed and forfeiture denied, and it was affirmed on appeal. People v. $280,020 in United States Currency, 2013 IL App (1st) 111820, 2013 Ill. App. LEXIS 383 (June 12, 2013). [Yes, there still are drug courier profile cases. Just not as many as before.]

Defendant who sold drugs out of an apartment lacked standing to challenge its search where he was not the renter and not on the utility bills. It was a “stash house.” “While Jones may have spent some nights in the apartment, his primary activity was selling drugs, an illicit commercial function that society doesn't value. Therefore, the court finds that Jones has not met his burden of proving he has standing to challenge the results of the Melville Street search.” Even if he had standing, he loses on the merits of probable cause for the warrant based on the sale from inside. United States v. Jones, 2013 U.S. Dist. LEXIS 83128 (D. Mass. June 11, 2013).*

“[T]he [implied] agreement between the PVPD and the LPD [for a drug buy operation in one city] constituted a ‘request for assistance’ under K.S.A. 2012 Supp. 22-2401a(2)(b) and, therefore, the PVPD's drug buy was a lawful exercise of its law enforcement authority.” State v. Vrabel, 2013 Kan. App. LEXIS 54 (June 14, 2013).*

Defendant was arrested for no DL. The trial judge made a credibility determination that the gun in this case was not in plain view, and that’s binding. As to search incident, there was no reason to fear anybody would come back to the car for a weapon, and no DL is not an offense for which there likely would be evidence in the car. Commonwealth v. Perkins, 2013 Mass. LEXIS 467 (June 14, 2013).

A CI bought crack from an apartment in New Orleans, and the officer believed the seller was “Dooley.” He staked out the apartment and followed a man leaving whom he believed to be Dooley. The officer called out to defendant to stop and he fled, popping a white bag the size of a ping-pong ball into his mouth which he began to “violently” chew. Officers got him to spit out what was left, and it tested positive for crack. The stop was with reasonable suspicion. State v. Wilson, 2013 La. App. LEXIS 1192 (La. App. 4 Cir. June 12, 2013).*

Drug officers watched defendant at gas station pumps doing what appeared to be two hand-to-hand transactions instead of buying gas. That supported a stop. He did not argue the stop was too long at the district court. A drug dog alerted. He was charged with a gun. United States v. Alexander, 2013 U.S. App. LEXIS 12087, 2013 FED App. 0566N (6th Cir. June 11, 2013).*

When defendant was stopped, he read from an attorney’s card saying “I refuse to consent.” He was detained, and when he finally “consented,” it was involuntary. State v. Gogel, 2013 Iowa App. LEXIS 640 (June 12, 2013):

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