<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by Anthony casteneta:
While arguing with my girlfriend over money she called her mother in oregon, who heard the comotion and called the police. She has never been to my resident.I left not Knowing the police were coming, and when i returned i was arrested for having two plants growing in a 1 sq ft space, one plant was about 15 inches high the auther was 3 inches high both were very thin and scragly and dried weigh way under an ounce. They want to give me a felony. My girlfriend was in the shower and came to the door with a towel wraped oround her, she left them at the front door while returning to the bedroom to dress. While in the bedroom they came in the house and started looking around, the police then went to the back bedroom and found the smaller plant up in the closet behind a book and the auther locked in a cabinet which they broke open.My question is do i have a chance with illegal search and siezure and can the prosecuter deny me drug diversion if i fight. <HR></BLOCKQUOTE>
My response:
The exclusionary rule is a judge-made rule, adopted by the courts to stop the police from conducting illegal searches and seizures. The constitution merely says the people shall be free from unreasonable searches. It doesn't say what the courts should do once an unreasonable search and seizure has taken place. The courts finally decided on the exclusionary rule, the rule that says that evidence illegally seized may not be used as evidence, as a means of enforcement. "We're sorry" doesn't quite cut it. The courts gave as their rationale for the rule the concept of "unclean hands." If the courts, the symbol of our highest justice, use evidence they know to be illegally obtained, they condone through their use of the evidence the illegal action and they then find themselves with "unclean hands."
The judiciary has never been fully at peace with the exclusionary rule. It has been debated since its inception and throughout its development whether the courts had the right to "create" this remedy, whether it really serves the intended purpose of protecting our constitutional right to privacy, and whether it has any actual deterrence effect with the police. As crime rates and organized crime have been on the upswing, the efficacy and legitimacy of the rule continues to be called into question. In recent years it has been eroded by such policies as the "good faith" exception, which says that even if a warrant is invalid, more than six months old, if the police believe it in "good faith" to be valid, the exclusionary rule will not apply.
The exclusionary rule is a judicial remedy imposed by the courts to deter violations of constitutional rights. "To enforce the Fourth Amendment we rely on the exclusionary rule, first adopted by the Supreme court in 1914 in Weeks v. United States, and applied to the states in 1961 in Mapp v. Ohio. " Peltason, Understanding the Constitution, p.149. The exclusionary rule does not apply to violations by purely private individuals, as established by Burdeau v. McDowell (1921) 256 U.S.465, 41 S.Ct. 574, 65 L.Ed. 1048 and followed ever since. However the ruling does apply to private citizens acting under color of law, as established in United States v. Price (1965) 383 U.S. 787, 86 S.Ct. 1152, 16 L.Ed.2d 267. [California interpretation of Price: Stapleton v. Superior Court, (1968) 70 Cal.2d 97, 101, 73 Cal.Rptr. 575, 447 P.2d 967.]
Case authority on purpose of the exclusionary rule:
Dyas v. Superior (1974) 11 Cal.3d 628, 114 Cal.Rptr. 114, 522 P.2d 674. Opinion by Justice Stanley Mosk. Justice Clark wrote a dissenting opinion in Dyas. Source of arguments against exclusion. You can find them on '87 Moot Court Boilerplate Disk.
From Justice Mosk's opinion:
"The two-fold purpose of the exclusionary rule is to deter law enforcement officers from engaging in unconstitutional searches and seizures by removing their incentive to do so, and to relieve the courts from being compelled to participate in such illegal conduct. [Citation to Cahan omitted.] Although the latter purpose might to some extent be served by excluding evidence derived from an unlawful search by a private citizen, the former would not. As the court explained in Botts (250 Cal.App.2d at pp. 482-483, 58 Cal.rptr. at p.450), 'Where an exclusionary rule is directed to the police, we may assume that they will have knowledge of it, that there will result directives from the higher echelons designed to secure compliance and to institute acceptable alternative practices, and that both the discipline of an organized police force and the desire to secure convictions will produce compliance with those directives. But, except in unusual cases, we cannot assume that private citizens will be aware of an exclusionary rule, that they will be under any disciplinary compulsion to obey such a rule, nor that they will not be motivated in their conduct by reasons apart from, or in addition to, a desire to assist in securing a criminal conviction. The result of applying an exclusionary to [such cases] ... would be to free a guilty man without any assurance that there would result any counterbalancing restraint of similar conduct in the future.'"
Case authority on California application of rule to private citizens acting in concert with government officials:
People v. Zelinski (1979) 24 Cal.3d 357, 155 Cal.Rptr. 575, 594 P.2d 1000.
People v. DeJuan (1985) 177 Cal.App.3d 1110, 217 Cal.Rptr. 642 [4th Appellate District]
In re Bryan S. (1980) 110 Cal.App.3d 144, 167 Cal.Rptr. 741 [2d Appellate District]
Retired Presiding Justice Bernard Jefferson wrote a dissenting opinion to Bryan S. The following excerpts are taken from that dissent:
"But it is also abundantly clear that a person being searched by a private individual is entitled to the protection of the constitutional provisions against unreasonable searches and seizures if the private individual doing the search has certain connections or a nexus with governmental personnel. This is the substance of the holding of People v. Zelinski (1979) 24 Cal.3d 357, 155 Cal.Rptr. 575, 594 P.2d 1000.
"The Zelinski Court upheld the right of a defendant to be free from a search by privately employed security personnel. In Zelinski, the search of defendant was performed by security personnel of a department store. In holding that the search violated defendant's constitutional rights against unreasonable search and seizure, the Zelinski court emphasized that the store's security forces were not acting in a purely private capacity "but rather were fulfilling a public function in bringing violators of the law to public justice." (Zelinski, supra, 24 Cal.3d 357, 366, 155 Cal.Rptr. 575, 580, 594 P.2d 1000, 1005.) One of the reasons which the Zelinski Court set forth for its decision was "that in our state today illegal conduct of privately employed security personnel poses a threat to privacy rights of Californians that is comparable to that which may be posed by the unlawful conduct of police officers." (Id. at p. 366, 155 Cal.Rptr. at p. 580, 594 P.2d at p. 1005.) (Emphasis added.) I agree with the majority that the Zelinski case cannot be construed as a holding that a defendant has a constitutional right to be free from a search by a private individual under any and all circumstances. The essential rationale of Zelinski is that the department store security personnel, although private individuals, were acting in the interests of the state in conducting a search of the defendant in that case. It was this action by private citizens in the interests of the state that brought into play the constitutional provisions against unreasonable search and seizure.
"In Zelinski, the Court observed that, "(a)lthough past cases have not applied the constitutional restrictions to purely private searches, we have recognized that some minimal official participation or encouragement may bring private action within the constitutional constraints on state action." (Zelin
