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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?

Ron Beyer
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a20
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    What exactly do you mean when you say the police stop the car "by coincidence"? – Just a guy May 20 '21 at 14:02
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    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 '21 at 21:06
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    @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 '21 at 22:41
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    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 '21 at 22:51
  • @Justaguy by coincidence I simply mean that the cop decides to pull someone over for whatever (non-justifiable) reason, and it happens to be the guy with the murder weapon. – a20 May 20 '21 at 23:36
  • Got it! Thanks. – Just a guy May 20 '21 at 23:38
  • @EvilSnack well, it's just a hypothetical scenario, that will hopefully never happen, but I guess you could imagine that the cop sees a knife with blood on it, or a special type of firearm matching the forensics from the murder investigation, or something else. Anyway, the scenario is that the weapon is found, seized and determined to be the murder weapon. I don't know if it would matter how it is determined to be the murder weapon... – a20 May 20 '21 at 23:38
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    @KRyan It's not the case that "everything the officer deems suspicious" can justify a stop. I was involved in a case that started with a traffic stop; the officer stopped me because he ran my plate and it came back "not on file". My lawyer had ample examples and cases to show that simply being not on file doesn't constitute a valid reason for a stop (could be witness protection, law enforcement, etc.). The prosecutor ended up offering to downgrade charge to minor one rather than try to establish legal precedent. – alcalde May 21 '21 at 01:20
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    @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 '21 at 01:49
  • @a20 Unless the police have to state, beforehand, their reasoning for pulling someone over surely after they've found a blood soaked machette (or whatever it is) they can put their reasoning down as something like using a phone whilst driving or not wearing a seat belt and then say their suspicions were aroused from there. – Lio Elbammalf May 21 '21 at 13:04
  • I recently watched https://www.youtube.com/watch?v=d-7o9xYp7eE. In this video, the police officer says there are so many laws on the books that every driver will violate some law in a short period of time. If so, they never need to concoct a reason for pulling someone over. – Don Branson May 21 '21 at 14:43

3 Answers3

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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.

Acccumulation
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hszmv
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    Should your second paragraph begin with "yes" in response to the first quoted question? –  May 20 '21 at 15:52
  • Nice! Between the two of us, I'd say we covered the long and short of this question. – Just a guy May 20 '21 at 16:10
  • @RockApe The answer addresses the question of inadmissibility at all, which is not yes. The knife can still be admissible for other reasons as further discussed. – hszmv May 20 '21 at 16:50
  • Thanks a lot for the extensive answer. Actually I did not think of any TV show, but it sounds interesting. What is the name of the show? – a20 May 20 '21 at 23:27
  • @a20 Maybe "Breaking Bad"? Walter operated a car wash to launder his drug money. – Barmar May 20 '21 at 23:49
  • What jurisdiction were you answering for? This is incorrect as a statement of US Federal law. Were you perhaps thinking of Texas? – David Schwartz May 21 '21 at 00:31
  • Perhaps discuss parallel construction? "there are examples of contraband seized by arrest for a different offense was not returned when the initial offense was overturned on appeal" My understanding is that this is how much of NY's Stop and Frisk works: they go around searching people, and even if they can't charge someone with something, if they find a weapon they claim that its possession is unlawful and keep it. – Acccumulation May 21 '21 at 00:41
  • "If you leave evidence in a place where the officer can see it, they can seize it in a car at least." There was an episode of Major Crimes where the cops proceed to open a bag in the back of a vehicle, and when the owner objects, they say "The bag is in plain sight". I'm not sure whether the writers are ignorant of the meaning of "plain sight", the characters were, or whether the cops were deliberately spouting BS to support an unlawful search. – Acccumulation May 21 '21 at 00:42
  • @Acccumulation That's a great First Amendment test/case... because the bag is in plain sight, but the contents aren't. – Harper - Reinstate Monica May 21 '21 at 01:38
  • @Harper-ReinstateMonica Do you mean Fourth Amendment? – Acccumulation May 21 '21 at 01:39
  • @Acccumulation Yeah, one of those lol ... sorry, I'm just so accustomed to saying "First amendment test case" ... – Harper - Reinstate Monica May 21 '21 at 02:00
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    @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 '21 at 12:54
  • @Acccumulation: My example case was the SCOTUS decision in Watts v. United States to overturn Watts' conviction on a Making a Threat against the President of the United States. Upon arrest by the secret service, he was found to be in possession of cannabis. Since this was incidental to the arrest for original charge, the cannabis evidence was no long admissible in the related charges as well, since they were only found incidental to the warrants issued. He still didn't get his dope back. – hszmv May 21 '21 at 13:08
  • "I don't know of ay knife ban laws in the U.S." there are many laws regarding what type of knives may be owned and/or carried, they vary across states. https://www.akti.org/state-knife-laws/ – Aubreal May 21 '21 at 15:32
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    "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 '21 at 16:19
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    @eps: No. They wouldn't be charged with unlawful possession... but they don't get the gun back. – hszmv May 21 '21 at 17:10
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    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 '21 at 19:20
  • If the police illegally searched A's car, and found a knife that B had planted (and they believe at first that A is the killer and later figure out he's not), isn't it the case that B's rights have not been violated, and the knife can be used as evidence against B? Especially if A and A's lawyer have no complaints against this? – gnasher729 Jul 27 '23 at 14:59
  • @gnasher729, That may depend on the judge and the presentation of the evidence by the arguments by the defense and prosecutor. The fruit of the poisonous tree rule is there to punish police who gather evidence by means of violating the rights of those who they collect against, however, an "inevitable discovery" would be possible if A was not pulled over and found the knife in his car and the damage at another stop and called the cops, which would make it validly seized. – hszmv Jul 27 '23 at 19:57
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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.

Just a guy
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    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. – David Siegel May 20 '21 at 17:12
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    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 '21 at 17:26
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    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 '21 at 20:23
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    @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 '21 at 21:23
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    @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 '21 at 21:26
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    It is worth mentioning that searches-of-cars is a special topic in the law, and apparently courts have overwhelmingly been deferential to police interests. There's a famous case from before WWII that they talked about on... Lawfare? I forget the name. It sounded like car-search rules is often the tip of the spear when it comes to setting precedent in favor of unrestricted police action. – Tom May 20 '21 at 23:21
  • @Justaguy thanks a lot! – a20 May 20 '21 at 23:38
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    @Tom Whoever you heard was probably talking about Carroll v. US. I'm not sure that car search cases are the "tip of the spear" for reducing 4th Amendment requirement. Carroll created the "automobile exception" to the 4th A's warrant requirement. Carroll held police did not need a warrant to search a car as long as they had probable cause to believe the car was being use to commit a crime. The idea was that b/c cars are mobile, they might escape if the police had to take the time to get a warrant. (Cont.) – Just a guy May 21 '21 at 00:01
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    @Justaguy Confirmed it's Carroll. Also agree that "tip of the spear" isn't accurate; I learned about Carrol through a podcast series, and I remember now that was just my private gloss, and context-dependent. I see, too, the Constitution Center link covers Carroll. Someone with privileges might usefully remove my comment. Thanks for the correction, btw. – Tom May 21 '21 at 00:26
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    @Tom (Cont) SCOTUS has expanded the automobile exception to other vehicles, but that's about it. To the extent there is a "tip of the spear" in this area, it's not Carroll but Terry v. Ohio. As David Seigel points out, Terry, which involved a stop and frisk search, held that such searches did only required reasonable suspicion, a lower standard than probable cause. These days, traffic stops are treated as type of Terry stop, that is a stop in which police can detain someone, and do a limited search of them, without a warrant. (Cont) – Just a guy May 21 '21 at 00:26
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    @Tom Just to finish up: Terry, which limits the 4th A's warrant requirement, was decided in 1968. It was decided then because SCOTUS only applied the Exclusionary Rule to the states in 1961, in Mapp v. Ohio. There has been some retrenchment in the reach of the 4th A since then, but by historical standards, it's not much. (Cont.) – Just a guy May 21 '21 at 00:32
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    @Tom And a caveat: Of course, Supreme Court decisions don't give us a complete picture of what is happening on the ground. There is plenty of evidence that police either ignore the 4th A or find ways to work around it. – Just a guy May 21 '21 at 00:34
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    You have this backwards. It is suppression of the evidence that is the exception. The norm is that illegally-collected evidence is admissible in Federal court. See, for example, Hudson v. Michigan, "Suppression of evidence, however, has always been our last resort, not our first impulse." The paragraph goes on to explain that excluding illegally-collected evidence is not the norm and is reserved for exceptional circumstances. – David Schwartz May 21 '21 at 00:35
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    @Tom Oops. I almost forgot. Thanks for the comment, which is fine. Your basic point -- cars have a special role in the 4th A -- is spot on. And you are also right that courts are more solicitous of the police in Terry stops than many people might think. Any mistakes you made were useful ones. – Just a guy May 21 '21 at 00:38
  • I assume if you stop at a red traffic light, or in a parking space, a curious police officer has the right to look into your car? – gnasher729 Jul 11 '22 at 15:21
  • @gnasher Yes, that would be covered by the plain view rule. – Just a guy Oct 05 '22 at 05:42
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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.

Dale M
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