11.5: Exceptions to the Exclusionary Rule-Important Case Law

There are exceptions to the exclusionary rule and how these exceptions are defined is often through Supreme Court decisions. Each type of exception to the exclusionary rule is listed below. They include the Attenuations Doctrine, Inevitable Discovery Doctrine, and the Plain View Doctrine. The exception and significant case law that helped shape the criminal court policy and procedures for the court in deciding the admissibility of evidence are provided below. Select the links to understand the key information of each case and how it is used to determine the admissibility of evidence seized.

Attenuation Doctrine

The Verdict: Utah v. Strieff

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Inevitable Discovery Doctrine

The Verdict: Nix v. Williams

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Plainview Doctrine

The Verdict: Murray v. United States

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More Exceptions to the Exclusionary Rule

Pin It! Five Exceptions to the Exclusionary Rule

Now that you are familiar with the Exclusionary Rule, as well as Supreme Court decisions and case law that form some important exceptions, watch this video to learn about more exceptions: five exceptions to the Exclusionary Rule.

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Identifying the Exceptions to the Exclusionary Rule

Please remember that the analysis for the exclusionary rule does not end when we determine that it applies in a particular case. Once the judge determines the exclusionary rule applies, then the judge must ask if any exceptions exist. There are five exceptions which may be analyzed in response to the exclusionary rule being triggered. The first exception is the Attenuation Doctrine. Attenuation Doctrine is defined as “[a] rule that excludes or suppresses evidence obtained in violation of an accused person’s constitutional rights. The rule providing that evidence obtained by illegal means may nonetheless be admissible if the connection between the evidence and the illegal means is sufficiently remote.”

The Attenuation Doctrine was first identified in Nardone v. U.S. (1939) when the government used indirect evidence of illegal wiretapping. The court held that a “sophisticated argument may prove a causal connection between information obtained through illicit wiretapping and the Government’s proof. As a matter of good sense, however, such connection may have become so attenuated as to dissipate the taint.”

The Supreme Court revisited and reintroduced the Attenuation Doctrine in Wong Son (1963) when the court held that the governmental agent’s unlawful entry of the first defendant’s home tainted any subsequent statements made by the defendant.[65] Thus, the court deems evidence admissible when the connection between the police misconduct is weak “or has been interrupted by an intervening circumstance so that the violation is not served by suppression.”

In determining if the attenuation rises to the level of a valid exception, the court in Brown v. Illinois (1975) three relevant factors:

1. The amount of time between the unconstitutional conduct and the discovery of evidence. Generally, the closer in time the more likely the evidence will likely be suppressed.
2. The presence of intervening circumstances. Here, the intervening circumstance was the discovery of the valid arrest warrant.
3. The court evaluates the purpose and flagrancy of the official misconduct. The more flagrant the misconduct the more it needs to be deterred. Negligence, errors in judgment etc., are not enough. Systemic or recurrent police misconduct is required.

Thus, Attenuation Doctrine may apply if the exclusionary rule is triggered, and the three relevant factors are met. If this analysis occurs and the attenuation doctrine applies, then the evidence is deemed admissible.

Another exception to the exclusionary rule is the Inevitable Discovery Doctrine. This rule is defined when the “… evidence obtained indirectly from an illegal search is admissible, and the illegality of the search is harmless, if the evidence would have been obtained nevertheless in the ordinary course of police work.” This exception was first noted in Nix v. Williams (1984) when the court held that the defendant’s statement, identifying where the body of his victim was located, was obtained illegally. The court supported its holding with the Inevitable Discovery Doctrine as “the discovery and condition of the victim’s body was properly admitted at respondent’s second trial on the ground that it would ultimately or inevitably have been discovered even if no violation of any constitutional provision had taken place.” It is important to note that the burden shifts to the prosecution to establish “by a preponderance of evidence that the information ultimately or inevitably would have been discovered by lawful means.” The sole purpose of the exclusionary rule is to address police misconduct, but if the evidence is discovered regardless of the misconduct, then it should be admissible. Therefore, the evidence obtained by illegal means is admissible, if a legal means of obtaining the evidence is available.

Next, we examine Independent Source Doctrine as an exception to the Exclusionary Rule. This Doctrine allows evidence illegally obtained to be admitted, if the evidence could be obtained by an autonomous line of investigation. The Independent Source Doctrine is defined as “… the evidence obtained by illegal means may nonetheless be admissible if that evidence is also obtained by legal means unrelated to the original illegal conduct.” The court in Murray v. U.S. and Nix emphasized that evidence illegally obtained can determined clean if it would have been discovered in the same condition anyway through legal means not related to the original illegal source. Similar to the Inevitable Discovery Doctrine, the burden shifts to the prosecution to establish the valid independent source of the evidence. To this end, the evidence would be admissible if the Independent Source Doctrine is applied.

Additionally, the Good Faith Doctrine is an exception to the exclusionary rule. It states that “…evidence obtained under a warrant later found to be invalid (especially because it is not supported by probable cause) is nonetheless admissible if the police reasonably relied on the notion that the warrant was valid.”[74] The Supreme Court upheld law enforcement agent’s illegal seizure of a large quantity of drugs based upon the agent’s belief that the warrant was sufficient in U.S. v. Leon (1984).[75] Although the court determined that the warrant was insufficient for the seizure, the court indicated that its analysis that the exclusionary rule should be weighed in circumstances where law enforcement agent’s do not exhibit bad behavior, but instead really act in good faith. To this end, evidence is admissible if the Good Faith Doctrine is applied to law enforcement’s reliance on a legal statute later deemed invalid.

Finally, the Harmless Error Doctrine is noted as an exception to the exclusionary rule. Harmless Error Doctrine is defined as “[t]he doctrine that an unimportant mistake by a trial judge, or some minor irregularity at trial, will not result in a reversal on appeal.” The Harmless error doctrine is distinguished from all other exceptions as it addresses mistakes by trial judges, whereas the other exceptions address mistakes raised by law enforcement agents. Of all of the exceptions to the Exclusionary Rule mentioned above, Epps posits that defendants raise the harmless error doctrine more than any other exception. Unfortunately, courts continue to acknowledge a lack of continuity within the test or approach for harmless error. According to Epps, Chapman (1967) reminds us that harmless error is a difficult concept for the courts to navigate as the automatic reversal test does not apply to all harmless error cases. Additionally, harmless error is dubbed a mystery as the process remains elusive. Judicially created, harmless error integrates the necessary constitutional protections in the criminal trial procedure as well as adverse policies that underpin criminal statutes. Harmless error appears to be more palatable because of its intentional flexibility. Courts continue to struggle with implementation as a consensus surrounding standard of application remains. Therefore, Pondolfi notes courts should engage in a specific analysis which includes examining their explicit constitutional support, legislative reinforcement, and historical weight. As a result, evidence is admissible if the Harmless Faith Doctrine is applied to such cases as such as mistakenly allowing the jury to hear prejudicial testimony, and then attempting to correct the record by striking the same testimony, while ordering the jury to ignore the same testimony.

Although the analysis of police misconduct spans the Exclusionary Rule exceptions - Attenuation, Independent Source, Inevitable Discovery, Good Faith, and Harmless Error - one additional aspect should be examined. When illegally evidence is deemed inadmissible after a motion to suppress is denied, all evidence which followed the initial illegal evidence, is inadmissible as well. In fact, this legal concept is referred to as fruit of the poisonous tree.

Fruit of the Poisonous Tree

As we close the loop in the analysis of the Exclusionary Rule, the understanding of the exceptions and the admissibility of any evidence obtained because of the illegal search requires examination of one additional doctrine. Most constitutional scholars agree that fruit of the poisonous tree is a legal extension of the Exclusionary Rule.

The Fruit of the Poisonous Tree as a legal concept was first applied in Silverthorne v. U.S. (1920), when the court noted that the “Fourth Amendment protects a corporation and its officers from compulsory production of the corporate books and papers for use in a criminal proceeding against them when the information upon which the subpoenas were framed was derived by the Government through a previous unconstitutional search and seizure.”

However, Justice Felix Frankfurter didn’t create the term Fruit of the Poisonous Tree until almost 2o years after Silverthorne in Nardone v. U.S. (1939).[82] The Fruit of the Poisonous Tree Doctrine is dependent upon the status of the originally tainted evidence.

Fruit of the Poisonous Tree is defined as “[t]he rule that evidence derived from an illegal search, arrest, or interrogation is inadmissible because the evidence (the “fruit”) was tainted by the illegality (the ‘poisonous tree’).” [83] Similar to the exclusionary rule, fruit of the poisonous tree must follow the analysis regarding exceptions. If a defendant alleges the evidence is subject to the fruit of the poisonous tree, then the evidence will be admissible if independent source, inevitable discovery, attenuation, good faith and/or harmless error applies. Under this doctrine, if the defendant’s drugs are located because of an unreasonable search and seizure of his car, the drugs seized are also inadmissible as the drugs were the “fruit” (direct extension) of the original tainted search.

Operationally, law enforcement agents who perform their job functions enjoy legal protections from being personally sued by a defendant. Critics of qualified immunity believe qualified immunity supports illegal and unconstitutional activity of law enforcement agents, creating a difficult environment for other law enforcement agents who approach their work both legally and constitutionally. As a result of law enforcement’s overreliance on qualified immunity, the exclusionary rule may prove to be the sole relief available to defendants who allege violations of their constitutional rights involving unreasonable search and seizures. In fact, qualified immunity will even apply to law enforcement agents who violate a defendant’s rights. Therefore, Cornell Law School Legal Information Institute asserts, illegally obtained evidence against a defendant is allowed except in scenarios where the defendant demonstrates its authority for standing to properly object to the noted illegal activity