Tagged: Silver Platter Doctrine

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #376

THE SPIRIT AND LAWYERING OOPS

“Look at my diploma. Does it say Placebo State University?”

That’s what I wanted to say to my clients then they complained that they didn’t want a public defender, they wanted a real lawyer. Now I always thought I had made up good ol’ Placebo State. Then I read Will Eisner’s The Spirit #5 and the dialog of one Chadwick Swineheart attorney at law. Then I realized there really must have been a P.S.U., because Chadwick obviously attended that august institution. And based on the knowledge of law he demonstrated in this story, Swineheart attended it in July.

In said story, the Spirit, masked crime fighter of Central City, was trying to find out the current whereabouts and master plan of The Octopus, master criminal and the Spirit’s archenemy. Spirit broke into the office of the Octopus’s lawyer, the aforementioned Mr. Swineheart, rifled Swineheart’s files, and started reading like a teenager devouring the Twilight trilogy. When Swineheart caught Spirit in flagrante lectio, Spirit asked Swineheart, “So tell me … Where’s The Octopus? What’s his latest game?”

Swineheart steeled himself and said, “Private, stolen documents are against the law. Inadmissible as evidence.” To which Spirit answered, “One of the many reasons I’m not a cop.” After this compelling legal argument, Swineheart coughed up everything he knew about the Octopus. And, considering the way he was portrayed, Swineheart probably dislodged a hairball, too.

So how many different legal mistakes did Mr. Swineheart make in said scene? Surprisingly, not violating the code of professional responsibility by revealing privileged information about his client. That’s one of the few things Swineheart didn’t get wrong.

Swineheart told Spirit that the Octopus “is running some big scam to sell inferior plate steel to a government contractor.” I added the emphasis, because it showed the Octopus was running an on-going criminal activity and was going to commit future criminal acts. The Code of Professional Responsibility permits an attorney to reveal privileged information when a client is going to commit a future crime in order to prevent said crime from happening. So Swineheart was correct on this one.

However, one out of several is only a good record if you’re playing Football in Cleveland. For lawyers it’s lousy. Even Hamilton Burger won all the ones he tried after Perry Mason told him where to look.

So what did Swineheart get wrong? Let’s start with the concept that “Private, stolen documents are against the law. Inadmissible as evidence.” Sure they are. If someone stole a bunch of private documents from a business to sell to its competitor, wouldn’t those stolen documents be admissible in the industrial espionage trial as proof that the theft occurred? Of course they would. So private, stolen documents are admissible as evidence.

Now before you accuse me of being fast and loose with the law, because Swineheart obviously meant that you can’t steal private documents from him and use them as evidence against him or his client, let me respond to your accusation. You’re right.

But don’t go gloating that you caught me in an error; not yet. Sure Swineheart probably did mean you can’t steal private documents from him and use them as evidence against him or his client. It doesn’t matter. Either way you interpret Swineheart’s statement, he was incorrect.

Private citizens can break into lawyer offices – or other places – and steal private incriminating documents – or other incriminating evidence – and turn that information over the police. The police and prosecutors office may then, in turn, use that information as evidence in prosecutions against the persons who had evidence stolen from them.

I’ve written about this before, so everybody let’s say it together, It’s the Silver Platter Doctrine. Hey, Swineheart, I didn’t hear you back there. I said, “everybody!”

The Fourth Amendment forbids the police from making illegal searches and seizures. When they do, the evidence seized during said illegal search and seizure is excluded by the Exclusionary Rule. As the United States Supreme Court explained in Mapp v. Ohio, the rational of the Exclusionary Rule is that the police should not be able to benefit from it’s illegal behavior and excluding the illegally-seized evidence will deter the police from committing similar violations in the future.

The police don’t like the Exclusionary Rule. Prosecutor Offices don’t like the Exclusionary Rule. And, truth be told, neither do courts. In fact, the only people who seem to like the Exclusionary Rule are the criminals.

No one likes letting criminals go because key evidence that would have convicted said criminal has to be excluded. As a result, courts have carved some exceptions into the Exclusionary Rule. And by “some,” I mean courts have carved so many exceptions into the Rule it looks like a turkey one hour after Thanksgiving dinner.

One of the chief exceptions to the Exclusion Rule looks at the rule’s justification that it deters future police misconduct The courts routinely hold that if excluding the evidence would not deter future police misconduct, then there is no underlying justification to excluding the evidence and it should not be excluded.

So if private citizens make an illegal search and find evidence which they turn over to the police, the underlying future misconduct justification doesn’t apply. Excluding the evidence would not deter future police misconduct, as there was no police misconduct in the first place. The misconduct was all on the part of the private citizen.

Sure the private citizen might have broken the law by trespassing and stealing evidence, but the police did nothing wrong. So the evidence should not be suppressed. See, Burdeau v. McDowell, a decision of the United States Supreme Court which holds precisely what I just wrote.

Naturally it did. If Burdeau didn’t support the argument I was making, would I have cited to it as support? Maybe if I were Chadwick Swineheart. But I’m not, so the Burdeau case says precisely what I argued.

The Burdeau case came out in 1921. It’s not exactly new law. Even if this current Spirit series takes place sometime in the past, it still has to take place after 1921. After all, The Spirit didn’t even start until 1940. So there’s no reason for Swineheart not to have know Burdeau’s rule and that evidence stolen by the Spirit would be admissible in court.

Okay, there’s one reason: Swineheart is to legal scholarship what the Quadruple Bypass Burger is to Jenny Craig.

But here’s what really hurts in the whole Swineheart matter. I’ve written about the Silver Platter doctrine before. I don’t think several times before would be an exaggeration. You’d think that a lawyer who’s an actual comic-book character would read the column of the foremost comic-book legal analyst. But >>sob<< he doesn’t.

Maybe that’s why he’s such a lousy lawyer.

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #356: RICK CASTLE HAS A SEIZURE

127956_9905Aced her Captains Exam, my ass! Based on the level of knowledge Kate Beckett showed this week, she couldn’t have aced a Poker hand with a stacked deck.

The May 11th episode of Castle was a fairly typical episode of the show. I’m not saying that like it’s a bad thing. A fairly typical episode of Castle is entertaining and doesn’t insult your intelligence over much. A fairly typical episode of Castle, also means New York City homicide detective Kate Beckett and her husband, mystery writer Rick Castle, were investigating a murder.

The episode started with a Jane Doe running through some remote woods in upstate New York then out onto a road, where she was hit by a truck, and died. Someone had carved crosses onto the woman’s face, so the state troopers believed she had been attacked in the woods then chased until she was hit by the truck. The truck driver saw a dark figure wearing a mask emerge from the woods. Based on this, the state troopers classified the case as a homicide. There was a recent receipt from a Manhattan coffee shop on the victim, so the troopers called Beckett hoping she could help them track down the victim’s identity.

Accidental death by truck during a brutal assault, however, is too ordinary a case for a police procedural show like Castle. There had to be a complication. Something to give the case that audience-grabbing oomph just before the show broke away for the opening credits.

There was. First Castle recognized the facial cross carvings and the truck driver’s description of the assailant’s mask. Then Castle gave us that extra oomph.

When he was a boy, Castle chanced upon a murder in progress while walking through some woods. Castle saw the killer had carved crosses onto the victim’s face and that the killer wore a distinctive mask; the same crosses and same mask from the current Jane Doe case. Castle realized that the Jane Doe was the work of a serial killer who had been operating for thirty years.

The detectives determined that their killer du semaine must have hidden his victims’ bodies so none were ever found. They were classified as missing persons. No one knew they murder victims, let alone that there was a TV-styled serial killer involved.

No one, that is, until Castle put the pieces together. When Castle saw the killer the first time, the killer, for reasons known only to no one, didn’t kill the only person who knew about his mask and his penchant for carving facial crosses. The killer simply warned Castle not to tell anyone about what he saw. Because that’s what you want to do if you’re a serial killer who operates in such secrecy that no one even knows you exist; you leave the only person who knows you exist alive to talk to the police. Oops, let me rethink that whole not insulting your intelligence thing.

In the course of their investigation, Castle and Beckett end up interviewing a person and Castle immediately recognized that person’s voice as being the murderer’s voice. So with about ten minutes to go in the episode, Castle and Beckett knew who the murderer was.

Problem was they had no proof.

Then Beckett learned the murderer’s dead parents had owned a remote farm in upstate New York near where the Jane Doe died. The farm was now held in trust now and their suspect was the trustee. Castle and Beckett realized that this remote farm was a perfect place for hiding bodies.

Problem was they still had no proof.

Beckett knew she could never get a warrant to search the farm based solely on Castle’s thirty-year-old voice recognition. “And if I searched it without one, then any evidence I would find would be inadmissible.” Okay, so far so good. Beckett showed an understanding of search and seizure law that was more than good enough to you ace a captains exam.

Then Beckett proved she actually understood search and seizure about as well as Cookie Monster understands good eating habits. “But you’re not [a cop],” Beckett said to Castle. “It would be trespassing. You would be breaking the law. But if you found something… And I know how much this means to you. So whatever you decide, I will back your play.”

The show broke for commercial. But rather than watch AT&T’s Lilly profess her love of bedazzling again, I took the opportunity to start writing this column in my head.

Detective Beckett was correct, the Fourth Amendment did prevent her from searching the farm without a warrant. Beckett was also correct that the Fourth Amendment doesn’t cover the actions of private citizens and that if a private citizen searched the farm without a warrant then gave any evidence he found to the police, that evidence would be admissible, because there was no state action involved – state action being actions by any government, either state or federal. It’s called the Silver Platter Doctrine, a term first used in Lustig v. United States, 338 U.S. 74.

Where Beckett went wrong was classifying Castle as a private citizen.

If a private citizen conducts a search while acting as a government agent, then state action does exist. United States v. Jacobsen 466 U.S. 109. If the private citizen is working with the police, than anything the private citizen finds during an illegal search is every bit as inadmissible as evidence found by an actual police officer, because, in essence, the police did find it.

So the question is: Was Castle acting as a private citizen or as a government agent when he searched the farm? The answer is plain. But to make it plainer, let’s look at the test most federal courts use to determine whether a person is acting as a private citizen or a government agent.

It’s a two-prong test, because courts would never make anything so simple that it could be answered with only one prong. The prongs are “ 1) whether the government knew of and acquiesced in the intrusive conduct, and 2) whether the party performing the search intended to assist law enforcement efforts or to further his own ends.” U.S. v. Walther 652 F.2d 788, 791 (9th Cir. 1981).

Here Detective Beckett not only knew of and acquiesced in Castle’s warrantless search, she actually suggested that Castle commit criminal trespass in order to search the farm for the evidence to convict the murderer. Under the Walther test, there wasn’t enough doubt that Castle was acting as a police agent to give Thomas the Apostle pause.

And even Thomas would have stopped doubting when the show came out of commercial break. Castle didn’t drive up to the farm alone. Castle and Beckett drove up to the farm together. Beckett stayed in the car which was parked just on the other side of the farm’s property line and watched through binoculars, while Castle searched the farm’s barn. But Beckett didn’t want Castle “going in alone.” She instructed him to put his cell phone on speaker. Ever the dutiful husband, Castle gave Beckett a step-by-step account of what he found over his cell. At one point, Beckett even told him, “you’re gonna need more than that to call the police. Look around he may have keep trophies from his victims.” Beckett may not have been physically conducting the search, but she was directing it from long distance.

Was there state action? Hell yes! Castle’s search had more state than the 114th Congress. In fact, considering current gridlock, Castle’s search had a more government action than the 114th Congress. A lot more.

Beckett’s suggested plan of attack was one that guaranteed none of the evidence found on the farm would be admissible. Her plan actually jeopardized their chance of catching the killer. Unless, of course, she and Castle planned to lie on the witness stand about how Castle found the evidence.

But they wouldn’t do that, would they? Not even I am so cynical as to suggest that “Effective Perjury” is covered in the captains exam.