Suppression Remedies and Tribal Police Searches:
A California state appellate court just issued a decision on a really fascinating issue: If tribal police on an Indian reservation conduct a unlawful search of a visitor to the reservation, are the fruits of the search suppressed in a subsequent state court prosecution? The Fourth Amendment generally does not apply to tribal governments, but in 1968 Congress passed a statutory form of the Bill of Rights that does apply to tribes. The Indian Civil Rights Act, 25 U.S.C. § 1302, largely replicates the various constitutional protections for individual rights. Section 1302(2) covers the Fourth Amendment:
In People v. Ramirez, handed down on Wednesday, tribal officers at a casino on an Indian reservation searched a car without probable cause and found drugs inside. The owner of the car was prosecuted in state court and moved to suppress the drugs. The California court's conclusion: the Indian Civil Rights Act does include a suppression remedy for violations.
The court relied on the notion that when Congress uses common law terms, it should be assumed to have incorporated the common law. The court concluded that the Fourth Amendment was basically common law, and that at the time Congress passed the law the Fourth Amendment was understood to have had a strong exclusionary rule. Congress passed the Indian Civil Rights Act in 1968, more than 50 years after recognizing a suppression remedy for violations of the Fourth Amendment at the federal level and 6 years after expanding it to the states. The court then concluded that the existing balancing test to determine the scope of the suppression remedy favors a suppression remedy here: the suppresson remedy is needed to deter tribal officers from abusing the Fourth Amendment-style right.
It's always interesting when Congress enacts a statute that tracks constitutional language. It's generally understood that Congress can incorporate constitutional rules by tracking constitutional language, but exactly which rules are incorporated can be unclear. Do all of the rules apply, or only some? And if only some, which ones? And if judicial interpretations of the Constitution change, does the meaning of the staute follow the substantive law that Congress "intended" to adopt at the time? Or does the meaning of the statute change instantaneously as new constitutional decisions are handed down? Great questions.
I think the California court probably reached the right result in this case, although its reasoning seems convoluted. Looking at the Act as a whole, it's pretty clear that Congress intended to incorporate all of the different constitutional protections. The absence of any specific language on remedies or scope suggests it was meant to be a wholesale adoption. I can't think of a constitutional reason why Congress couldn't do that, so I would think it's permitted and the most natural reading of the statute.
That's my gut sense, at least; I'd never heard of this Act until reading the Ramirez decision, so I'm certainly open to learning more. Thanks to FourthAmendment.com for the link.
No Indian tribe in exercising powers of self-government shall . . . violate the right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures, nor issue warrants, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized.The question is, does that text incorporate all of the Fourth Amendment, and in particular the suppression remedy? Apparently no court has squarely and comprehensively addressed this issue until this week.
In People v. Ramirez, handed down on Wednesday, tribal officers at a casino on an Indian reservation searched a car without probable cause and found drugs inside. The owner of the car was prosecuted in state court and moved to suppress the drugs. The California court's conclusion: the Indian Civil Rights Act does include a suppression remedy for violations.
The court relied on the notion that when Congress uses common law terms, it should be assumed to have incorporated the common law. The court concluded that the Fourth Amendment was basically common law, and that at the time Congress passed the law the Fourth Amendment was understood to have had a strong exclusionary rule. Congress passed the Indian Civil Rights Act in 1968, more than 50 years after recognizing a suppression remedy for violations of the Fourth Amendment at the federal level and 6 years after expanding it to the states. The court then concluded that the existing balancing test to determine the scope of the suppression remedy favors a suppression remedy here: the suppresson remedy is needed to deter tribal officers from abusing the Fourth Amendment-style right.
It's always interesting when Congress enacts a statute that tracks constitutional language. It's generally understood that Congress can incorporate constitutional rules by tracking constitutional language, but exactly which rules are incorporated can be unclear. Do all of the rules apply, or only some? And if only some, which ones? And if judicial interpretations of the Constitution change, does the meaning of the staute follow the substantive law that Congress "intended" to adopt at the time? Or does the meaning of the statute change instantaneously as new constitutional decisions are handed down? Great questions.
I think the California court probably reached the right result in this case, although its reasoning seems convoluted. Looking at the Act as a whole, it's pretty clear that Congress intended to incorporate all of the different constitutional protections. The absence of any specific language on remedies or scope suggests it was meant to be a wholesale adoption. I can't think of a constitutional reason why Congress couldn't do that, so I would think it's permitted and the most natural reading of the statute.
That's my gut sense, at least; I'd never heard of this Act until reading the Ramirez decision, so I'm certainly open to learning more. Thanks to FourthAmendment.com for the link.
Isn't the public policy behind the exclusionary rule that nothing less would suffice to discourage law enforcement from conducting illegal searches?
It seems like the purpose of the search by Indian law enforcement was to find evidence of a crime and report it to state officials, in which case the same policies which underlie the exclusionary rule ought to apply even though we're talking about different sovereign entities.
I wonder if the same fact pattern has come up in any state-federal interrelationships. I assume there can be searches that are illegal under state law but not under federal law - or is that too small a category to provide us with a useful example?
As I understand it, merely participating in an investigation that failed to secure a conviction is not a career-limiting act, and that sort of reasoning would seem to encourage local investigators who know that the case will go federal to violate the rights of citizens, or if they have already violated those rights, attempt to push cases to federal courts that should not be there.
Where does the Constitution give Congress the power to legislate on the behavior of Tribal Governments? All I can find is the Article 1, Section 8 power "To regulate commerce ... with the indian tribes." Is that really where the power to "pass on" the Fourth Amendment to tribal lands comes from, or did I just miss a grant somewhere else?
Also, if the Constitution indirectly gives Congress sufficient power to regulate the inner workings of these nominally sovereign tribes, why does it's seemingly more explicit protections not apply directly? If the tribes are more "sovereign" than the states in the application (or, rather, the lack therof) of Constitutional safeguards, why doesn't it follow that Congressional power to "meddle" be correspondingly less in other areas?
I feel I'm not making myself clear (a common problem :-) How can the Constitution give Congress a general power to constrain tribal government by mere statute when identically worded, overarching Constitutional language doesn't apply?
So .... are Indian tribes, for these purposes, more like governments within the U.S. federal system, or like foreign governments or private agencies? My off-the-cuff reaction is that, for these purposes at least, they're more like foreign governments. After all, the Fourth Amendment (whether directly or via the Fourteenth Amendment) does not directly apply to the tribes. Moreover, the Indian Civil Rights Act is a constraint on the tribes, not on the States. So why should a state court think that its treatment of illegally-obtained evidence (as opposed to the Tribe's treatment of that evidence) would turn on an interpretation of the Act?
This is a fascinating problem, though.
From the opinion: The defendant was sentenced to 12 years in prison for raising marijuana and for a related firearm offense. He contends that some of the evidence used against him had been obtained by Indiana law enforcement officers in violation of an Indiana law governing telephone warrants and had been turned over to federal prosecutors. He points out that a federal officer who obtains evidence in violation of federal law can be enjoined from using the evidence in a state criminal prosecution, Rea v. United States, 350 U.S. 214, 100 L. Ed. 233, 76 S. Ct. 292 (1956), and he argues that evidence obtained in violation of state law should likewise be barred from use in a federal prosecution. Rea has little or no contemporary significance, now that the exclusionary rule of the Fourth Amendment applies to state as well as federal prosecutions. Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684 (1961). But it has not been overruled.
Appealingly symmetrical as Delaporte's argument is, it has been repeatedly, and we think rightly, rejected. Gordon v. Degelmann, 29 F.3d 295, 301 (7th Cir. 1994); United States v. Sutherland, 929 F.2d 765, 769-71 (1st Cir. 1991); United States v. Wilson, 36 F.3d 205, 208 (1st Cir. 1994); United States v. Mota, 982 F.2d 1384, 1387 (9th Cir. 1993). The federal government has an interest in preventing its officers from violating federal law, but it has no interest in preventing state officers from violating state law. If the warrant in this case had failed to comply with the requirements of federal law, Delaporte would have had a federal defense to the use of the evidence seized under the warrant in any court, state or federal. But that is not argued. The only violation (if there was one) was of state law. State officers do not by violating state law violate the federal Constitution. Archie v. City of Racine, 847 F.2d 1211, 1217 (7th Cir. 1988) (en banc). So there is no constitutional basis for the defense asserted in this case, Cleary v. Bolger, 371 U.S. 392, 399, 9 L. Ed. 2d 390, 83 S. Ct. 385 (1963), nor any other basis that we can think of. At argument the defendant's lawyer suggested that the basis was comity; that the federal government should not invite violations of state law by providing a forum in which the violators can use the fruits of their violations. Given the considerable overlap between state and federal drug laws, the argument has a certain bite. State law enforcement officers who violate state law without at the same time violating federal law will often be able to turn over the fruits of their violations to federal law enforcement officers who will as it were do the state officer's prosecuting, only in federal court.
If recognizing in the name of comity a federal defense to the use of evidence obtained in violation of state law were an indispensable method of assuring compliance with state law, it would deserve serious consideration, as the Ninth Circuit suggested in United States v. Henderson, 721 F.2d 662, 664- 65 (9th Cir. 1983). No such imperative has been shown. So far as appears, if Indiana wants to prevent even the rather technical violations of its telephone warrant statute that occurred here, it can punish its law enforcement officers who turn over evidence seized under unlawful warrants to the federal government. If it does not want to do this, that is no concern of ours. The refusal of the executive branch of state government to enforce a law enacted by the legislative branch is, in general, no business of a federal court. It is an aspect of the separation of powers within the states, a matter of state prerogative. Markham v. Clark, 978 F.2d 993, 995 (7th Cir. 1992), and cases cited there. If the states implored us to recognize the defense proposed by the defendant in order to prevent the flouting of state law by state law enforcement officers, we might have a different case, though United States v. Payner, 447 U.S. 727, 65 L. Ed. 2d 468, 100 S. Ct. 2439 (1980), with its narrow construal of the federal courts' supervisory power over law enforcement, suggests not.
Sorry if this post is long, i just wanted to get the jist of the law, as i see it with regard to this peculiar issue, to the readers. I personally find the whole separate sovereign doctrine a pile of b.s. considering for every single drug crime committed within a state, the feds have concurrent jurisdiction over the same crime. If a state officer violates state law and the evidence would be suppressed in state court, just move the case to federal court and secure a conviction. Given the feds limited resources, this likely does not happen that often. But if your client has more than your usual stash, or information on other drug traffickers, etc..., the pressures of the federal government can be brought to bear and where the defendant has much more incentive to either plea out, or cooperate. Just my .02cents.
Have a great weekend.
I guess the point is, there don't rate to be very many cases where a search violates state law but not the federal constitution. The state wiretapping statute in your case is a good example, but I just doubt the issue recurs with much frequency. Certainly, state law enforcement officers aren't going to develop an attitude of "anything goes, as long as we let the Feds prosecute," since the vast majority of potential abuses by state officials would implicate the federal constitution.
At bottom, the real question is this: Was the exclusionary rule meant to remedy a wrong inflicted upon the defendant - - - - or was it meant to educate (or punish) law enforcement on the proper way to handle their job by letting some criminals go free?
On this question, you have two distinct camps. One says that agents of the government should not be allowed to profit from their own disregard for the rights of citizens, as such disregard of the laws by the agents of government breed contempt for the law in general, and invites anarchy. The other camp feels the remedy (suppression) is many times too severe as suppression was meant to punish the gov. agents for misconduct and should only be utilized in those cases where the agents would use the example of their suspect being released, (despite being literally caught "red-handed")- to never do that again.
From my experience working on motions to suppress, etc..in state court in Chicago, seeing the same agents involved in the same warrantless (and many times questionable) arrests, with almost identical recitals in their police reports, suppression does not change police behavior one iota. Perhaps it did in the past with cases like Miranda and others, but not now. For also figuring into the cop's mental calculus is the lottery (i.e, which judge will this case eventually land in front of and what are my odds of getting one who would suppress this evidence? Usually the odds are high in favor of suppression motion NOT being granted)
Now, if you are a drug agent, surveilling a home which one of your numerous informants (mostly drug addicts) told you was invovled in drug activity, and you think a shipment of money or drugs just arrived, do you bother with the warrant application knowing it may take time, or maybe the judge wont think there is probable cause yet or do you just knock on the door and start making arrests and sort it all out later? Which is the most preferrable route to take constitutionally? Practically? Often times, to borrow a phrase, "the practicalities outweigh the constitutionalities." Sometimes this is justified, such as in hot pursuit cases. Unfortunately, in my opinion, on balance this sort of constitutional short-cutting finds sanction in the law and by judges, who themselves are often times former prosecutors acting like current prosecutors only wearing a robe. I realize my view may have been corrupted by going to law school in and practicing law in Chicago, where the cops arent particularly known for being the most "law-abiding, polite, professional" staff.
You mean there are times a warrant doesn't issue because of no probable cause??? Don't get me wrong, I'm all in favor of less exceptions to the exclusionary rule. But it seems to be really a matter of officers not wanting to take the time to get a warrant rather than any danger of a warrant being turned down.
Among the various judges, some are sticklers for rules and procedure and of course law - others are not. So if you have a cop, with a warrant application based on information from some anonymous informant junkie who just got picked up for possessing a small amount of whatever and is working it off so to speak by turning in his dealer, a smart judge will question the informant regarding his basis of knowledge (i.e, how he knows indvidual A at point B has x amount of cocaine in his home) and will also ask the cop if he/she had used the informant in the past, success rate, etc... By being thorough at the front end, you can lessen the chances any evidence eventually seized will be thrown out. But what if the cop never used the informant before, he doesnt have any other information tying the home in question to illegal activity and his surveillance has not turned up anything suspicious other than a few hispanic men leaving the home and coming back later? (not to say thats inherently suspicious, but combined with an anonymous tip it has been enough to get a warrant). Many cops may think this isnt enough to apply for a warrant, but alas, its enough for a so-called "investigative knock and talk" which is police report slang for, we went in there without a warrant anyway and found the dope and made arrests.
But yeah, im sure good ol' fashioned laziness factors into it as well. I believe i mentioned on here before that the perception among the criminal bar in Chicago in relation to police perjury is that judges think police lie on the stand in criminal cases 65 or 70% of the time,(when i say 70% of the time i mean in 70% of the cases, they may lie once, not that they lie constantly during the same case 70% of the time) that prosecutors think they lie 75-80% of the time, and criminal defense lawyers are convinced they lie in over 90% of the cases.
If you are lazy, a cop, and need to manufacture exigent circumstances where there were previously none, you simply lie on the stand that the defendant either orally consented to the search, the defendant dropped drugs/guns in plain view as you approached, or whatever, and thats that. The impeachment by omission (i.e, all this bogus crap wasnt in the police report) is overlooked when the proscutor reminds the court that the police report is just a "summary" of the events. wink wink nod nod - motion denied next case! Its all pretty sad and pathetic really...when one thinks about it too long. And to tie it in with my previous comment about gov. agents breaking the law breeding contempt for the law...well, its no surprise that the same type of people who constantly violate people's 4th &5th amend. rights are the same type of people who shake down and kidnap drug dealers, beat suspects, report $50,000 recovered from crime scene when it was really 100,000, etc...and eventually disgrace the entire force when they are caught.
The purported "plenary power" of Congress to legislate over all matters related to tribes, whether involving external commerce with them or their internal government or anything else, is in my view constitutionally indefensible. But it's over a century old, and is said to be a penumbral emanation from the Indian Commerce Clause, the treaty power, and the trusteeship relation between Congress and the tribes inherent in the category of 'domestic dependent nation' which Marshall had long before established as the central analytical category of federal Indian law.
As it stands now, tribes are *not* directly limited by the Constitution-- as Madison said, they were not parties to the division of powers between the states and the new federal center and it was as irrelevant to their legal status as the papal claim to divide the New World between the Spanish and the Portugese. But they are subject to unlimited Congressional legislative authority. The ICRA's tracking of the Bill of Rights doesn't bear on its constitutionality; Congress may legislate *anything* with respect to the tribes as governments and with respect to relations between tribes and members.
I would imagine that just using the text of the 14th Amendment would be unappealing because it would leave to the courts, and the vagaries of future incorporation jurisprudence, all the determination of what rights were protected. But in any event Congress explicitly did not replicate all the rights of the Bill of Rights, so just throwing in the 14th would have eliminated the ability to pick and choose.
wow. you are COMPLETELY ignoring selection bias.
obviously, cases where cops decide NOT to search because they don't want to make what they believe to be an unconstitutional/suppressionable speech does not fit into your equation - since the search is never made, the case is never presented to your eyes.
all you are doing is looking at examples where searches ARE made, thus this is an absurd conclusion.
selection bias. you are only looking at examples where bad searches HAPPEN and then concluding that the rules against bad searches have no influence on cops because they still happen.
this reminds me of the error of selection bias in hedge fund analysis, but i digress.
your conclusion might have some merit if you could mind read into all those examples where cops did NOT search because the search would be suppressable.
these examples would literally run into the millions (cases where cops don't search because they want to, but believe they shouldn't because it's suppressable).
these two prongs sound exactly like aguilar spinelli criteria which is the law of the land in SOME jurisdictions, but not others. in those others, it is a totality of the circumstances, not an aguilar spinelli thang if i recall correctly.