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In the first Dirty Harry movie, the titular detective Harry Callahan is in pursuit of a serial killer who already murdered several victims and is holding another victim as a hostage. He figures out the most likely hideout of the suspect, hurries there, barges in, finds the rifle of the suspect, and successfully tortures the suspect for the location of the hostage (who was already dead, but the detective didn't know that).

Later, the district attorney tells him that the killer can walk free, because

  1. Callahan used torture to get the location of the hostage out of the suspect, and information acquired by torture is not admissible as evidence.
  2. Callahan entered the hideout of the suspect without a warrant, therefore the rifle found therein is not admissible as evidence, despite ballistics confirming that it was indeed the rifle which fired the bullets found in the previous victims.

However, I find problems in both arguments:

  1. It was not merely information what Callahan acquired, but the physical body of the victim. Doesn't that change anything?

  2. In case of the hideout and the rifle, is such a clear evidence still inadmissible? Can't the "hot pursuit" rules be applied? He didn't have time for a warrant, he was running against the clock.

  3. (bonus) even if they decide not to press charges because they are afraid they can't win the trial, can't they at least put the suspect under surveillance? They know he did it (they are just afraid of a trial they think they can't win), they know he will kill again... don't they have the requirements they need to keep him under surveillance? Yet in the movie they stop the investigation completely and don't do absolutely anything until the killer strikes again.

Yes, I know it's just a movie, but the question is about the real life laws regarding the situation presented in the movie

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  • As I understand it, hot pursuit requires more certainty that the person being pursued is in a particular place than this question implies. Traditionally this means that the pursuer saw the pursued enter during the course of the pursuit. The only time I saw the movie, I was too young to understand the plot, let alone to remember it.
    – phoog
    Oct 6 '21 at 12:16
  • Are you generally familiar with the fruit of the poisionous tree doctrine, or should an answer include an explanation of it? Oct 6 '21 at 13:48
  • "Hot pursuit" doesn't apply, but the more general concept of exigent circumstances might. It still won't justify torture. Note too that a warrant can be obtained very quickly when necessary; many jurisdictions have a judge on call 24 hours a day, who can issue a warrant by phone. Oct 6 '21 at 14:17
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    @NateEldredge The OP may or may not be aware, but there are likely to be other readers of this answer who are not. Since this is likely to be central to any answer, a brief summary of the principle and the reasoning behind it would not go amiss. Oct 6 '21 at 16:36
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The question says:

Callahan used torture to get the location of the hostage out of the suspect, and information acquired by torture is not admissible as evidence.

In general, evidence obtained by torture is indeed not admissible in US courts. This is particularly true when the person doing the torture is a police officer. If it is done by a private citizen, with no prompting or encouragement by the police or any part of the government, different rules may apply.

See Brown v. Mississippi, 297 U.S. 278 (1936) for the inadmissibility of confessions obtained through torture or physical coercion. The Mapp decision, cited below, would have extended this to information or evidence obtained via torture.

The question asks:

It was not merely information what Callahan acquired, but the physical body of the victim. Doesn't that change anything?

No. If the evidence was obtained unlawfully, then the evidence so obtained and all other evidence or information indirectly obtained through the unlawful act is inadmissible. This is the "Fruit of the poisonous tree" doctrine. It applies just as much to physical evidence as to a confession. "Fruit of the poisonous tree" doctrine is an extension of the "exclusionary rule" and like the basic rule, is intended to deter unlawful actions on the part of law enforcement and government generally, and to ensure that the courts are not complicit in such unlawful actions. The rule was first fully established in US Federal courts in Weeks v. United States, 232 U.S. 383 (1914) although versions of the rule go back before the founding of the United States. The rule was applied to the states in Mapp v. Ohio, 367 U.S. 643 (1961) although some states applied a version of the rule even before the Weeks decision.

There are exceptions, however, notably "inevitable discovery". That means if other, lawful, investigations already underway would certainly have uncovered the same evidence, then it may be admissible. Another similar exception is the "Independent source doctrine". This says that when the same evidence is later obtained independently from activities untainted by the initial illegality, it may be admissible. See Nix v. Williams, 467 U.S. 431 (1984), for both of these exceptions. There is also a good-faith exception where a warrant was obtained on invalid grounds but used in good-faith by offers who thought it valid.

I do not see that any of these exceptions would apply in the situation described in the question.

It does not matter how "clear" the evidence may be. If it is obtained unlawfully, and no exception applies, it will not be admissible.

The question asks:

In case of the hideout and the rifle, is such a clear evidence still inadmissible? Can't the "hot pursuit" rules be applied? He didn't have time for a warrant, he was running against the clock.

The doctrine of"hot pursuit" alone does not justify entering a private dwelling without a warrant, but there are a number of exceptions to the warrant requirement, one of which "Exigent Circumstances" is one, or rather a group of relates exceptions.

In Missouri v. McNeely, 569 U.S. 141 (2013), the Supreme Court wrote in its opinion, "A variety of circumstances may give rise to an exigency sufficient to justify a warrantless search, including law enforcement's need to provide emergency assistance to an occupant of a home . . . engage in “hot pursuit” of a fleeing suspect . . . or enter a burning building to put out a fire and investigate its cause."

Thus “hot pursuit” can be an exigent Circumstance and justify a warrentless entry, but this will depend on the precise facts of the case. It is not clear that the circumstances described in the question would qualify.

The question asks:

even if they decide not to press charges because they are afraid they can't win the trial, can't they at least put the suspect under surveillance?

Legally, they probably can. Not even probable cause is required to continue an investigation, or to place a suspected criminal under surveillance There might be reasons other than the law of evidence not to use surveillance, for example if the police fear that the suspect will observe the surveillance and thus be alerted. But this seems like a place where the movie plot may have been unrealistic.

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  • Having not seen the film, I did have this question: Since Callahan was violating the law, would his break in of the suspects' hide out constitute it's own independent crime that the police would investigate? I am aware that the police couldn't order him to do it, then investigate, but if he was told not to do this or if his supervisors were not aware he did it until after the fact, the evidence he gained illegaly would be legally obtained to prosecute Harry, than could be used to prosecute the bad guy via "Independent Source Doctrine".
    – hszmv
    Oct 6 '21 at 18:53
  • Thanks for the great and in-depth answer! Can we then conclude that in real life it would be not only possible, but likely (even though not 100% certain) that both pieces of evidence (the gun and the victim's body) would be inadmissible in a trial? (he was also not prosecuted for assaulting and wounding two police officers at the Mount Davidson cross, despite both being available to give witness testimony, but that plot hole would be unrelated to this question)
    – vsz
    Oct 6 '21 at 21:33
  • @vsz In real life, the body, being found via torture, would almost surely be inadmissible. The gun was in plain sight once "Harry" entered the hideout, so if exigent circumstances were found to apply and excuse the lack of a warrant, it might well be admissible. But if Harry could be made to admit the torture on the stand, a jury might be alienated and reject the evidence or the case@vsz Oct 6 '21 at 21:48
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The point of the plot is to stoke outrage, not to discuss law.

In the 70's there was a large public-opinion bugaboo that "criminals" were being let off on "technicalities." This movie is intended to stoke that flame. Note that this resulted in election of officials/appointment of judges & justices, etc. who have consistently reduced suspect rights in the name of "law and order." That's not a legal thing; it's a political one, but laws and legal interpretation are governed by politics.

Obviously you can't torture a suspect to obtain evidence. (This is a huge problem with current 9-11 Guantanamo prisoner trials). But I promise that a prosecutor would find a way to get at least some of that evidence admitted in the real world, including already-mentioned exigent circumstances. Harry would've been coached on exactly what to say ("The suspect reached for his rifle so I fired my service weapon. He then admitted to me that the victim was located in...").

The movie presents District Attorneys and the Court as the enemy. This is so far from fact as to be laughable. Yes, suspects are released regularly when cops show their a$$, but if this had ever happened with a kidnapper we would've heard about it.

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    While you're making good points, this is not what the question was asking.
    – vsz
    Oct 6 '21 at 15:04
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    I promise that a prosecutor would find a way to get at least some of that evidence admitted... Do you have any evidence to support that assertion? Oct 6 '21 at 16:36
  • @PaulJohnson only observations of elected officials and that kidnappers don't really go free
    – Tiger Guy
    Oct 6 '21 at 17:31

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