ICE agents illegally entered defendant\u2019s hotel room to arrest him and then they obtained his consent. \u201c\u2018[T]he question of whether the exclusionary rule applies is an issue separate from whether Fourth Amendment rights were violated.\u2019 … Suppression of evidence is only justified when the discovery of evidence results from illegal government action. …\u201d Supplemental briefing required on the exclusionary rule. United States v. Eggleston, 2010 U.S. Dist. LEXIS 72480 (D. Ore. July 19, 2010):<\/p>\n
A three-part test is employed to determine attenuation: (1) the temporal proximity between the illegality and the discovery of evidence, (2) the presence of any intervening circumstances, and (3) the purpose and flagrancy of the official misconduct. See United States v. Washington, 490 F.3d 765, 776-77 (9th Cir. 2007) (citing Brown v. Illinois, 422 U.S. 590, 603-04 (1975)). The government bears the burden to show admissibility of evidence. Id.<\/p>\n
In the facts presented here, although the illegality was temporally proximate to the search of defendant’s motel room, it was preceded by a legal arrest. The search of defendant’s room appears to have been inevitable in light of the fact that ICE agents had followed him to the motel and had observed him carrying luggage. Additionally, as noted above, defendant was advised of his rights repeatedly and he consistently waived his Fourth Amendment rights both orally and in writing after the agents’ improper entry into his room. After defendant was taken to the ICE office, he signed three written consent forms, one of which specifically allowed ICE agents to search his motel room.<\/p>\n
However, under the exclusionary rule, the burden remains with the government to establish the admissibility of the evidence obtained after law enforcement officers entered defendant’s motel room improperly. Because this burden has not yet been met, counsel are ordered to file supplemental briefs addressing whether the improper entry should result in suppression of evidence and, if so, the extent of that evidence. In light of the pending trial date, the schedule for this briefing must be accelerated. The parties are ordered to file their briefs no later than noon on July 26, 2010. No responses and no oral argument will be permitted. The briefs are limited to ten pages, plus attached exhibits if necessary.<\/p><\/blockquote>\n
How many bites at the apple does the government get? The entry was illegal. The “consent” occurred as a result. Come on.<\/p>\n","protected":false},"excerpt":{"rendered":"
b2evALnk.b2WPAutP Continue reading