Chapter 10
The Exclusionary Rule and Entrapment
Exclusionary Rule
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provides that evidence that is obtained as a
result of a violation of the Fourth Amendment
prohibition on unreasonable searches and
seizures is inadmissible in a criminal
prosecution to establish a defendant’s guilt
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derivative evidence
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evidence that is discovered as a result of the unlawfully seized
evidence is also excluded from evidence
fruit of the poisonous tree
Exclusionary Rule (cont.)
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Wolf v. Colorado: incorporated the Fourth
Amendment to the states
Elkins v. United States: eliminated the
silver platter doctrine
Mapp incorporated the exclusionary rule
United States v. Calandra: the exclusionary
rule is “a judicially created remedy
designed to safeguard Fourth Amendment
rights generally through its deterrent effect
rather than a personal constitutional right of
the party aggrieved”
Arguments For
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Justice Tom Clark, Mapp v. Ohio
Elkins v. United States
Supreme Court Justice Louis Brandeis, dissent
in Olmsted v. United States
the cost of excluding evidence has led police
departments to stress the importance of police
professionalism
a relatively small proportion of cases lead to the
acquittal of defendants based on the exclusion
of evidence
Arguments Against
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the exclusionary rule is a “judicially created remedy;”
judges are free to limit or even abolish the exclusionary
rule
Chief Justice Warren Burger, Bivens v. Six Unknown
Named Agents
decreases respect for the judiciary by requiring courts to
take the side of defendants rather than victims
undermines the purpose of a criminal trial
evidence is suppressed regardless of whether the police
committed a technical violation of the law or engaged in
a blatant violation
has no impact on the police in those instances in which
the police seize a gun or drugs in order to remove the
contraband from the streets and have no intention of
pursuing a criminal prosecution
Alternatives
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civil tort suits for damages against police
officers who have engaged in unreasonable
searches and seizures and the government
criminal prosecution of the police for
violation of civil liberties
police administrative procedures subjecting
officers to penalties
a civilian review board that examines cases
of suspected abuse
a judicial hearing conducted prior to the
prosecution of the criminal charge
Invoking the Exclusionary Rule
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initial steps
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the first step in challenging the reasonableness of a search to
file a pretrial motion to suppress
most states and the federal courts place the burden of proof
on the defendant when the search or seizure is based on a
warrant
the burden of proof is shifted to the government when the
police act without a warrant
if the trial judge decides to admit the evidence at trial
and the defendant is convicted, the defense may
appeal and raise the issue of whether the judge made
the correct decision in admitting the evidence
Invoking (cont.)
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Chapman v. California
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harmless error
requires that the prosecution establish beyond a reasonable
doubt that there is no reasonable probability that the
evidence influenced the outcome of the trial
habeas corpus
Alderman v. United States
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standing
whether the defendant has both a subjective and an
objectively reasonable expectation of privacy in the area that
is subject to the search
burden of proof typically is placed on the defendant
Exceptions
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based on a determination that the modest amount
of additional deterrence to be gained from
excluding the evidence from trial is outweighed
by the cost to society of excluding the evidence
from trial
collateral proceedings
attenuation
Good Faith Exception
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objectively reasonable
Justice Byron White, dissent in Stone v.
Powell
United States v. Leon: Court recognized the
good faith exception
Massachusetts v. Sheppard
Illinois v. Krull
Arizona v. Evans
Illinois v. Rodriguez
Other Exceptions
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independent source
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inevitable discovery
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Silverthorne Lumber Company v. United States
Murray v. State
Murray v. State
impeachment
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Walder v. United States
Harris v. New York
Illinois v. James
Legal Equations
Effectiveness
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Thomas Davies
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“nonprosecution and/or nonconviction” of cases by the
police, prosecutors, and judges based on the illegal seizure
of evidence is “in the range of 0.6% to 2.35% “ of all
felony arrests
while these “loss rates” are not “trivial,” that they do not
amount to a “major impact” on the criminal justice system
Davies’ findings are backed by Peter Nardulli
and others
Entrapment
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Sorrells v. United States: the “conception and
planning of an offense by an officer, and his
procurement of its commission by one who
would not have perpetrated it except for the
trickery, persuasion, or fraud of the officer”
the government’s inducement of an otherwise
innocent individual to commit a crime
Arguments For
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certain crimes are difficult to investigate and to
prevent without using informants
undercover techniques can result in a large
number of arrests without the expenditure of
substantial resources
individuals will be deterred from criminal
activity by the threat of government involvement
in the crime
the government may “manufacture
Arguments
Against
crime” by individuals who otherwise
may not engage in criminal activity
 the government may lose respect by
engaging in law breaking
 informants who are employed by the
government to infiltrate criminal
organizations may be criminals whose
own illicit activity often is overlooked
in exchange for their assistance
 innocent individuals are approached in
order to test their moral virtue by

Law of Entrapment
balance the need of law enforcement to rely
on undercover techniques against the
interest in ensuring that innocent
individuals are not pressured or tricked into
illegal activity
 Sherman v. United States
 subjective
 objective
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Subjective Test for Entrapment
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focuses on the defendant
asks whether the accused possessed the criminal
intent or “predisposition” to commit the crime or
whether the government “created” the crime
“but for” the actions of the government, would the
accused have broken the law?
two steps
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determine whether the government induced the crime
evaluate whether the defendant possessed a “predisposition”
to commit the crime with which he/she is charged
followed by the federal government and most states
Objective Test for Entrapment
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focuses on the conduct of the government
Justice Felix Frankfurter, dissent: the
crucial question is “whether police conduct
revealed in the particular case falls below
standards to which common feelings
respond, for the proper use of governmental
power”
followed by the Model Penal Code and a
minority of states
Due Process Test for Entrapment
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the government’s conduct was so unfair and
outrageous that it violates the Due Process
Clause of the Fifth and Fourteenth Amendments
to the U.S. Constitution, and it therefore would
be unjust to convict the defendant
U.S. Supreme Court rejected this test in United
States v. Russell
Legal Equations
Invoking Entrapment
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affirmative defense
in jurisdictions that follow the subjective
approach, the defendant generally is required to
establish the fact of inducement by a
government agent after which the burden then
shifts to the government to counter the defense
by establishing the defendant’s “predisposition”
beyond a reasonable doubt
in jurisdictions that follow have adopted the
objective test the burden of production of
evidence and persuasion is placed on the
defendant