The Eastern District of Michigan concludes that the Sixth Circuit will hold that 404(b) evidence is subject to exclusion. The court determines, however, that it was legally seized. United States v. Campbell, 2009 U.S. Dist. LEXIS 33331 (E.D. Mich. April 20, 2009). On the 404(b) applicability, the court surveys many cases:<\/p>\n
The Court’s independent research has not revealed any cases addressing the issue in the context of Miranda violations. However, several courts have addressed the question of whether the Fourth Amendment’s exclusionary rule applies to 404(b) evidence and all of those courts agree that it does, at least under certain circumstances. See e.g., United States v. Hill, 60 F.3d 672 (10th Cir.), cert. denied, 516 U.S. 970, 116 S. Ct. 432, 133 L. Ed. 2d 347 (1995); United States v. Hill, 898 F. 2d 72 (7th Cir. 1990); United States v. Lopez-Martinez, 725 F.2d 471 (9th Cir.), 469 U.S. 837, 105 S. Ct. 134, 83 L. Ed. 2d 74, (1984); United States v. Renteria, 625 F.2d 1279 (5th Cir. 1980); United States v. Knight, 185 F. Supp. 2d 65 (D.D.C. 2002); United States v. Ozuna, 129 F. Supp. 2d 1345 (S.D. Fla. 2001), aff’d, 48 Fed. Appx. 739 (11th Cir. 2002); United States v. Perez, 562 F. Supp. 574 (D.N.J. 1982). It does not appear that the Sixth Circuit has addressed this issue.<\/p>\n
. . .<\/p>\n
Thus, the Tenth Circuit concluded that in cases involving constitutional challenges to Rule 404(b) evidence, courts should conduct a two-step inquiry: “admitting the evidence only if it both meets the technical requirements of Rule 404(b) and was not obtained in violation of the defendant’s Fourth Amendment rights.” [Hill]<\/p>\n
. . .<\/p>\n
From these authorities, it would appear that a case-by-case approach should be taken in determining whether the exclusionary rule applies to 404(b) evidence of a prior arrest. Unlike the Tenth Circuit Hill case, here the evidence is not being offered to prove an element of the crime. Nor is there any evidence of collusion or bad faith on the part of the officers. There is, in fact, no evidence to suggest that the officers involved in the August 1 stop had any involvement whatsoever with any of the undercover narcotics transactions involving Defendant and Agent Jury. On the other hand, the August 1 arrest here was not too remote in time — it occurred only four months prior to the December 6 drug deal — nor were the August 1 and December 6 crimes too distinct in character. Thus, the Court cannot say that the nexus would be too attenuated to warrant application of the exclusionary rule. Therefore, the Court will take the approach of the Seventh Circuit and determine whether the evidence of the prior arrest both meets the requisites of Rule 404(b) and passes constitutional muster. This Opinion and Order addresses the constitutional issues.<\/p><\/blockquote>\n
[I looked for a free link to this opinion, but PACER may be down for maintenance in this court today.]<\/p>\n","protected":false},"excerpt":{"rendered":"
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