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Comment by landryraccoon | Hacker News Reader

The point of the law is that even if law enforcement finds evidence of guilt via illegal search, they cannot use that evidence in court. This is a crucial protection for citizens. The point of the ruling isn't that it prevents the search, it prevents the result of that search from being used against you. If law enforcement wishes to establish the guilt of a suspect in court, it has to use only evidence it obtained through legal means.

https://dictionary.law.com/Default.aspx?selected=2087

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That's certainly a crucial protection but if law enforcement conducts an embarrassing or destructive search (such as when police recently blew up a man's home), they can still essentially end you.

But yes, it's good that you can't be simultaneously nailed in court with illegally collected evidence.

* https://www.npr.org/2019/10/30/774788611/police-owe-nothing-...

And in such a case, you can sue for harassment. The police can't routinely violate your rights just for the heck of it, they need to show a good-faith belief that what they're doing is legal and could produce evidence useful in court.

From the article:

> But the problem with that argument, the appeals court ruled, is that courts have long held that police cannot be on the hook for property damage caused in the process of trying to make an arrest.

That was a rather different problem than directly harassing the unlawfully searched person.

In that case it was incompetence, gross negligence, and so on. Naturally it's hard to prove in court that the court's enforcement arm is at fault.

And at first the guy tried to sue for damages but that was thrown out - because it's so well established - but still that's the point that should be hammered.

Police can be held responsible if the arrest itself was illegal, an attempt to harass instead of execute the law in good faith.

> And in such a case, you can sue for harassment.

> they need to show a good-faith belief...

That's not how being a plaintiff works, which is what is frustrating about this type of situation.

They do some action which is legally questionable. You have to show standing and potentially damages to be able to bring the suit, then you have to prove that what they did was not a good faith belief that their actions were legal. The onus is on the person without the power with (typically) minimal resources.

Unfortunately there is still parallel construction: https://en.wikipedia.org/wiki/Parallel_construction

Honest question: can illegally obtained evidence be used to get a search warrant?

Yes. If the magistrate fails to notice the illegal-ness of the evidence and gives the warrant, it is valid nonetheless.

If the illegal-ness later comes to light would a court consider evidence from the 'valid' warrant tainted? Always, sometimes?

IANAL, but my understanding is that evidence obtained from an invalidated warrant is disallowed, unless the court finds that it was inevitable that the state would have discovered the evidence.

Nope. If the government fooled the magistrate, it is disallowed. However if the magistrate has failed to decode the law correctly and issued an unlawful or unconstitutional warrant, the evidence obtained by the warrant can be used in court.

https://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree

In the specific case you're talking about, always.

No, if a warrant is obtained using illegal evidence, then you poison the warrant and all the evidence arising from it.

Parallel construction happens way less frequently than people think it does, since it requires that there be an actual parallel path to the evidence that would have been available at the time the evidence was improperly obtained. It's basically only upheld when evidence was collected improperly through one means (i.e., a confession without Miranda disclosure), but could have been collected properly through other means available at the time of the improper collection (i.e., if the contents of the confession would have been revealed by a standard CSI search).

I don’t think you have to be mirandized to give a confession, no?

I think you would to use that in court - https://en.wikipedia.org/wiki/Miranda_v._Arizona - IANAL.

Not a lawyer nor intimately familiar with the subject, so until someone more knowledgeable chimes in and at risk of making a fool of myself:

I believe it depends on context. If you're in police custody and being questioned, you need to be read your Miranda rights. If the police show up to your door and you suddenly blurt out a confession, I don't think it matters.

That's mostly correct, but it gets even more contextual: if you confess right when you greet the police, your confession is admissible.

However, once the police start asking questions, they have to show they had not created a "custodial" situation in which the suspect was not free to leave (or in this case, to close the door and tell the police to fuck off). In most states, the burden is on the defendant to show that a custodial situation was created; in some states, that is presumed and the police have to show that a custodial situation was not created.

You do have to be Mirandized if the prosecution expects to use that confession--or any evidence derived from that confession (under the fruit of the poisonous tree doctrine)-in court.

For the record--I am former public defender. And I successfully used the failure to properly Mirandize a client successfully many times to block the prosecution from introducing evidence.

> Parallel construction happens way less frequently than people think it does

This seems like a rather vague claim

I used to be a public defender before I went into corporate and tax practice. Out of roughly 100,000 cases that went through the local PD office while I was there, fewer than 10 involved parallel construction.

Including the two neighboring counties, out of nearly 750,000 criminal cases during that time, only about 3 or 4 dozen involved parallel construction, and most of those were gang cases in which the parallel construction involved one of the gang members turning on his homies.

It's big news in local legal circles when the prosecution tries to use parallel construction to get evidence into the record because it happens so rarely.

It does happen more frequently at the federal level, but they also have significantly more resources to conduct investigations along parallel paths.

Those are the cases where the parallel construction was caught, right? What about all the cases where parallel construction was used and successfully kept secret?

> if law enforcement finds evidence of guilt via illegal search, they cannot use that evidence in court.

This is not strictly correct. If law enforcement violates your rights via an illegal search, they cannot use that evidence against you. However, they may be able to use the evidence against others.

For example, suppose the police illegally search your house and find drugs and a list of customers. You may be able to exclude that evidence from being used against you but your customers may not be so lucky because it was not their 4th Amendment rights that were violated by the illegal search.

Interesting, so there is an incentive to do an illegal search especially for drugs where you might find a higher up.

Besides "parallel construction", there is a third-party doctrine: https://en.wikipedia.org/wiki/Third-party_doctrine

Unless they claim to be acting in "Good faith", that is, didn't think at the time that the search was improper and it wasn't clearly settled law.

https://en.wikipedia.org/wiki/Carpenter_v._United_States#Sub...

You can win a Supreme Court case about a search being illegal, and still have that evidence be used to nail you on the original charge.

That’s not entirely true - I think the official term is creative reconstruction -and basically once they have evidence then they go back and document all of the things that, with perfect hindsight, would have caused reasonable suspicion so that obtaining the evidence then becomes justified. So John Doe has been caught transporting narcotics, and with perfect hindsight we know that John drives a much more expensive car then his his income allows, so that raised suspicion and justified searching the vehicle where the narcotics were found. That’s how it seems to work more or less.

You’re thinking of Parallel Construction

https://en.m.wikipedia.org/wiki/Parallel_construction

That’s it! Thank you

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