19

Say that a murder was committed. Some time after, without any justifiable reason (perhaps on a hunch, or just by coincidence), a police officer stops a car, unlawfully searches it and stumbles upon the weapon used in the recent murder.

What would happen in this case? Is the murder weapon inadmissible? If so, what would happen to the driver, who was most likely the murderer? Can the police arrest him, and investigate him with the hope of finding other evidence that would be enough to sentence him for the murder, despite the inadmissibility of the actual weapon? Or is the murderer in practice immune from being charged for this case, since the weapon cannot be tied to him?

If the weapon is considered inadmissible, is it returned to the suspect? If yes, would it also be returned even if it is of a type that the suspect is not legally allowed to own?

Is the weapon permanently inadmissible for all future, or could it be used in a later court proceeding?

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  • 3
    What exactly do you mean when you say the police stop the car "by coincidence"?
    – Just a guy
    May 20 at 14:02
  • 19
    It’s worth noting that it is widely believed (by officers, by journalists, by lawyers, and so on) that it’s for all intents and purposes impossible for a traffic stop to be illegal in the United States. Anything the officer deems “suspicious” can justify the stop, and courts have deemed things like “failing to stop at a Stop sign” and “dutifully stopping at every Stop sign,” or “driving under the speed limit,” “driving exactly the speed limit,” or “driving over the speed limit,” to be valid causes of “suspicion” that can lead to a stop.
    – KRyan
    May 20 at 21:06
  • 1
    @KRyan careful with practical interpretations of the law in this SE. There're still laws that prohibit unwarranted stops, obviously this disproves your point entirely tongue in cheek
    – TCooper
    May 20 at 22:41
  • 2
    I'm curious to know how the policeman conducting the search would know that the weapon found is the actual murder weapon.
    – EvilSnack
    May 20 at 22:51
  • 4
    @alcalde That is true, I should have been more careful in my language. But while not every justification will fly, every possible stop seems to have some justification that would—if the officer in your case had been more careful about the stated reason for the stop, with no change in the actual circumstances, they could have found something that would have worked. Or at least, this is something I have seen claimed by professionals on all sides of this question.
    – KRyan
    May 21 at 1:49
24

So, lets say for argument's sake the search is illegal (we'll discuss scenario later).

Is the murder weapon inadmissible?

No. Evidence seized in an illegal search is inadmissible for use in court, as to allow it would reward the state for breaking the law. At time of arrest it's still evidence and depending on what other evidence comes out might not be inadmissible (More on this later). If the knife is the only thing linking the driver to the murder, then it's inadmissible.

What would happen to the driver, who was most likely the murderer?

At this stage, the driver might be arrested and charged... inadmissibility is a matter for pre-trial motions, which takes place after the cop made the search. Whether the guy is a murder or not, he is a suspect who has been accused.

Can the police arrest him, and investigate him with the hope of finding other evidence that would be enough to sentence him for the murder, despite the inadmissibility of the actual weapon?

This all takes place before the inadmissibility of evidence is declared, so they certainly could investigate the guy, cuff him, read him his rights, book him, Danno, and put him in jail to help build their case. HOWEVER, if the knife is the only thing linking the man to the crime, then all of this becomes what's called "Fruit of the Poisonous Tree". Because the knife was used as the sole evidence to secure search warrants against the suspect, and should the knife become inadmissible, anything that resulted from the execution of the warrants is itself inadmissible.

is the murderer in practice immune from being charged for this case, since the weapon cannot be tied to him?

Not entirely. Rarely is a murder weapon needed to secure a conviction. Not only that, but while the search is illegal, there is an exception called "Inevitable Discovery" which holds that evidence seized illegally initially may still be admissible if the cops can show that the legally obtained evidence would have led to the knife. Suppose they had CCTV footage and captured the man entering the area of the scene and found out he had a connection to the victim, and got a warrant that would have included his car... that would mean the knife is admissible even if the search was illegal.

If the weapon is considered inadmissible, is it returned to the suspect? If yes, would it also be returned even if it is of a type that the suspect is not legally allowed to own?

Yes to both, though when it would be returned is subject to possible use in other investigations. Additionally, while I don't know of any knife ban laws in the U.S., there are examples of contraband seized by arrest for a different offense was not returned when the initial offense was overturned on appeal, meaning the contraband evidence was no longer validly seized and thus that half of the case was overturned... but the defendant wasn't returned his drugs.

Is the weapon permanently inadmissible for all future, or could it be used in a later court proceeding?

No. I'm starting to suspect I know the TV show and episode that inspired this question, but the search violated suspect 1's rights and thus was inadmissible for his trial. However, if a second suspect was discovered as the evidence was developed, and the investigation lead to the knife (say... suspect 2 had access to suspect 1's car... like say... through his job at a car wash that suspect 1 was patronizing... and planted the knife in suspect 1's car to frame him) then the knife is admissible because of inevitable discovery rule.

Now, the TV Show I alluded too, and you'll forgive me as it's been a while, the events were that the cop pulled over suspect 1 for a valid reason (busted tail light, intentionally done by suspect 2 to get attention) and saw the knife on the backseat of the car, which is not a violation of search and seizure rules. The bloody knife was in plain view and gave probable cause to arrest and search the entirety of the car. If you leave evidence in a place where the officer can see it, they can seize it in a car at least. Places like the glove box, under the seats, or the trunk would properly hide it and not allow the officer to search the car, but through the windows is just fine.

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    Should your second paragraph begin with "yes" in response to the first quoted question?
    – Rick
    May 20 at 15:52
  • 1
    @a20: CSI, one of the earlier ones. The episode opens with the traffic officer who found the knife after pulling the suspect over but failing to wait for a warrant, tossing out the evidence from the case. The CSI team has a mad dash to rebuild the case only to discover they had the wrong guy for the above reason.
    – hszmv
    May 21 at 12:54
  • 2
    "Yes to both" someone who isn't legally able to own a gun would get their gun back? That is hard to believe without a cite.
    – eps
    May 21 at 16:19
  • 1
    @eps: No. They wouldn't be charged with unlawful possession... but they don't get the gun back.
    – hszmv
    May 21 at 17:10
  • 3
    As eps said, the summary "Yes to both" seems wrong. The 2nd of the "both" is "would it also be returned even if it is of a type that the suspect is not legally allowed to own?" The answer given to this seems like a no, not a yes.
    – nanoman
    May 21 at 19:20
5

Under the Fourth Amendment, police need a reason both to stop a car and also to search it. (Under current precedent, they need "reasonable suspicion" to stop the car, and "probable cause" to search it.) If, as you say, the stop was "unreasonable" and the search was "unlawful," both were unconstitutional. Under the "exclusionary rule" evidence gotten unconstitutionally cannot be used directly against the driver.

Furthermore, under the doctrine of the "fruit of the poisonous tree" any evidence gotten indirectly from an unconstitutional search also cannot be used against the driver. That is, the "fruit" of any further police work based on the excluded evidence is "poisoned" by its unconstitutional origins.

There are of course exceptions to both rules. Thus, if the stop was legal, the knife could be used as evidence if it was in "plain view." Similarly, if the fruit of the poisonous tree has an "independent" source, or would "inevitably" have been discovered anyway, it can still be used.

As you can imagine, much of the law of searches and seizures has to do with cars. Many constitutional law texts even have sections on the law of cars. If you don't have one at hand, there are many summaries on line, like this.

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  • 2
    Traffic stops and other stops that are not arrests do not require probable cause. A "Terry stop" requires only "reasonable suspicion" a significantly lower standard than probable cause. If in a Terry strop a weapon is in "plain view" a search is then lawful. May 20 at 17:12
  • 1
    Ouch! You are absolutely right. Thank you for pointing that out. I should have known better than to write off the top of my head before the caffeine kicked in. I hope the re-write fixed the errors.
    – Just a guy
    May 20 at 17:26
  • 1
    The plain view doctrine would only kick in here if the stop itself were legal, though, no? If there were no reasonable suspicion for the stop, then the officer's incidental sighting of the weapon would not have occurred absent the illegal stop. Now, if the weapon were, say, taped to the outside of the vehicle and, thus, the officer could see it as the suspect drove past, then "plain view" would apply. My understanding of "plain view" is that it only applies if it was seen in plain view of a place where the police were legally in the first place.
    – reirab
    May 20 at 20:23
  • 1
    @reirab You are absolutely right. I guess I can't blame the caffeine this time -- I'm just plain being sloppy today.
    – Just a guy
    May 20 at 21:23
  • 1
    @DavidSiegel Ooops. I forgot to tag you on the earlier thank you/mea culpa. It looks like I can't do anything right today. (Just be glad I'm not working for/on/with you today!)
    – Just a guy
    May 20 at 21:26
4

For an alternative jurisdiction

The Evidence Act 1995 (Cth) and the similarly named acts in , , , and are all based on the model Uniform Evidence Acts. , and do their own thing so we won't talk about them.

"Improperly or illegally obtained evidence" is dealt with in s138 which says it:

... is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

This means that the judge has the discretion to allow the evidence if the interests of justice (in a global sense) are better served by admitting it. This discretion is unfettered except for the need to balance the "desirability" vs the "undesirability" - basically, are the interests of justice, taken globally, better served by admitting over excluding.

The act gives a non-exhaustive list of things the judge "may" consider:

(a) the probative value of the evidence; and

(b) the importance of the evidence in the proceeding; and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and

(d) the gravity of the impropriety or contravention; and

(e) whether the impropriety or contravention was deliberate or reckless; and

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and

(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

2
  • This sounds an awful lot like, "The evidence can be admitted if the judge feels like it."
    – EvilSnack
    Jun 2 at 22:43
  • @EvilSnack not “like”, it “is”.
    – Dale M
    Jun 2 at 22:44

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