CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, January 31, 2005

New Case: Independent Source Doctrine for Tainted Searches

The Sixth Circuit held last week in U.S. v. Jenkins, No. 03-3989, that a warrant was not invalid despite the fact that officers obtained it by supplying the magistrate with information obtained through a prior search that violated the Fourth Amendment.  The Court began by discussing Murray v. United States, 487 U.S. 533, 541 (1988) as follows:

"According to Murray, a subsequent search pursuant to a warrant would not be an independent source of evidence unearthed by a previous search if the information obtained during the first search was "presented to the Magistrate and affected his decision to issue the warrant." Id. at 542. In Murray, the police illegally searched a warehouse but then prepared a warrantbased only on their observations before the illegal search. Id. at 535-36. The Court remanded the case for determination of whether the warrant for the second search resulted from information independent of the illegal search. Id. at 543-44. A strict application of Murray 's test of whether information from the first search affected the magistrate's decision, without consideration of other authorities and the underpinnings of the Murray reasoning, might well suggest that the district court's suppression of the cocaine was correct. After all, the information from Riolo's unlawful inspection of the bags in Room 127 (as well as from the confidential informant) was presented to the judge at the time the affidavit was presented, and while it is impossible to know whether the oral information "affected" the judge's decision in some way, one would think it likely. Agent Kahler himself testified that he felt that the information the officers told Judge Corrigan affected his decision."

The Sixth Circuit then stated, however, that "for evidence to be inadmissible due to the government's failure to collect it via an independent source, the tainted information presented to the judge must affect the judge's decision in a substantive, meaningful way.  Under this interpretation of Murray, the simple fact that an application for a warrant contains information obtained from an illegal search does not by itself signify that the independent source doctrine does not apply. If the application for a warrant contains probable cause apart from the improper information, then the warrant is lawful and the independent source doctrine applies, providing that the officers were not prompted to obtain the warrant by what they observed during the initial entry. Invalidating a search warrant because the magistrate was affected in some minor way by tainted information, when the warrant would have been granted even without the tainted information, would put the police in a worse position than they would have been in had they not presented the tainted information to the magistrate. In addressing an analogous situation, the Supreme Court in Franks v. Delaware, 438 U.S. 154, 171-72, 172 n. 8 (1978), suggested that false or reckless statements in a warrant should be set aside and that the warrant should then be examined to determine "if what is left is sufficient to sustain probable cause." Since "[k]nowingly including a false statement in a warrant affidavit seems the functional equivalent of (if not an even more serious transgression than) including in the affidavit knowledge of facts illegally obtained," see Veillette, then it makes sense to deal with cases such as the present one in the same fashion utilized by the Supreme Court in Franks."  [Mark Godsey]

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why can't professors give a clear explanation of the independent source doctrine? always tested in criminal procedure courses, but rarely understood.

Posted by: anonymous | Oct 25, 2006 3:52:42 PM

why can't professors give a clear explanation of the independent source doctrine? always tested in criminal procedure courses, but rarely understood.

Posted by: anonymous | Oct 25, 2006 3:53:36 PM

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