Why did US law go with inadmissibility, and not reactionary punitive action, to prevent illegal evidence collection? As I've understood it, the exclusionary rule is a prophylactic rule aimed to prevent the cultivation of illegal evidence collection by removing the utility of illegally-collected evidence through inadmissibility in court. Another way to prevent illegal evidence collection would be through strong and fear-inducing punitive action. The problem with the inadmissibility route (1) is that in certain cases, good evidence is thrown out. The limitations to the law that I've seen do not include any &quot;if the evidence shows a grave crime, it must be admissible, despite illegal collection&quot;. It seems problematic that there can be blatant, undeniable evidence for heinous crimes, yet just because it was illegally attained, a blind eye must be turned and the criminal goes free. One problem with the punitive route (2) is that it, to me, seems to go against the values of the US legal system. The way I see it, one can morally look at illegal actions done by a government official in two ways: (a) they are so important and have a hard job (esp. officers), so they should get more lenient punishments. (b) they are supposed to set an example and they have sworn an oath, when they break the law, it sends a message of hypocrisy and insecurity that breeds government hate and distrust. Going with the (b) view, government officials should at least be given equally strong punishments, or stronger. It seems however, to my foreign and non-lawyer eyes, that the US is more in the (a) camp, meaning government officials should be given more lenient punishments. Given this assumption, route (2) would run contrary to at least one moral notion of the US legal system. Another problem with route (2) is that it might wind up incarcerating or firing a lot of officers and agents, though some may say that is a good thing due to the nature of those officers and agents. The last problem that I can think of is that this system may be easy to exploit. If strong punitive action was taken against illegal evidence collection, yet it is still admissible, that leaves motivation to do it. So, officers may congregate and create a kind of group immunity to punitive action, with everyone swearing to each other to never testify against one another on matters of illegal evidence collection. This could then propel illegal evidence collection, due to there being no practical danger in doing it, since the majority of officers have each others backs. Investigaton would be done by officers or agents, and if they're in on it, then there's no chance. This would then propel illegal evidence collection, and it could maybe lead to graver violations of privacy during the collection, as the informal rules of &quot;no testifying&quot; would probably not include a bunch of clauses for when the privacy/legal violations were too serious to be allowed. To me, the reasons I've given does make route (1) more favorable. However, I don't think I have figured out every reason that went behind the choice of (1) instead of (2). I am also not sure whether the reasons I've given are correct. One of my reasons was also based on an assumption that the US legal system holds the view contained in (b). So, what reasons did I get right/wrong, and what reasons did I miss? EDIT: After reading @Dale M's answer, I realize I forgot to specify I was talking about US jurisdiction, as I've only heard of this law in relation to the US. However, this led to a pretty good answer about whether or not countries in the West generally have an exclusionary rule or not. Interesting to see that, in the West at least, it seems to be pretty limited to the US.
The problem with Solution 2 is that government officials in the United States enjoy qualified immunity with respect to actions that they did while acting under color of law. It's not total immunity, but if they do things by the book, they cannot be prosecuted even if something goes wrong (even when doing things by the book, Police deal in very volatile situations and things can still go wrong because of an X factor to specific for the training manual to cover.). In other cases, it may be because multiple officers are working the scene and Office A lied to Officer B about the situation. Consider Officer A pulls over a suspect and realizes it was someone who was suspected of a crime, but couldn't prove it. He calls for back up and Officer B arrives. Upon arriving on scene, Officer A tells B to search the trunk of the car despite the fact that A had not received consent from the suspect nor has a warrant, nor cause to make a search of a trunk of a vehicle. B makes the search and finds [the bloody knife/the stash of drugs/the smoking gun/the match to a child's shoe that was missing from the kidnapping scene/ insert other incriminating evidence]. Under system (2), since it was Officer B who made the illegal search, B would be liable for it, even though Officer A lied about having legal reason for a search of the trunk space. But what's more... if the evidence is gonna be used anyway, what's to stop the cops doing it again? After all, there is very little recourse for those who are illegally searched to contest this in court (If I'm illegally searched and don't have anything on me, I have to take this to civil court, which is a different animal than Criminal Court and exposes me to broader Discovery... aka gives the cops free reign to search my property for a hell of a lot more illegal things.) or just sit back and count my 4th amendment rights (the section of the constitution protecting against unwarranted search and seizures) as worth less than the paper they're printed on. Oh, and by the way... that second word seizure... that means that they will be taking my property (or myself if they arrest me) and will not be giving it back for some time while they process it... if it's a legal to hold item (like my laptop that I do work on) that's going to make it harder for me to do my job which injures me further in lost business and income. In other cases, it could be they have a warrant for a large item (a stolen big screen tv) and while searching for it, open my sugar bowel and find evidence of a crime unrelated to theft of the television (i.e. opening a baggie of weed). This is actually an illegal search because, unless I am a wizard, a Time Lord, or Mary Poppins, there is no reason why a container smaller than a big screen TV should ever be searched when looking for a Big Screen TV and the cops should logically see this as out of bounds of the search warrant. The nature of this is damaging before the legality of the search can be determined, and because the search may have been out of scope of the warrant that was otherwise justified, the rule of making the evidence of a crime inadmissible was held in order to prevent LEOs from doing this because they could. This rule also started to take formation prior to the Revolutionary War. British Law had ruled against compelled confessions being inadmissible as evidence in 1769, a full six years before the Revolutionary war started (1775) and seven years before the publication of the Declaration of Independence (1776). Now there are some exceptions that can get the evidence brought back in, such as plain view (&quot;The suspect's vehicle is a pick up truck with an open bed, the murder weapon was lying in the bed covered in blood&quot;), inevitable discovery (&quot;We have developed evidence by other means that would have lead us to this evidence legally&quot;) and Exigent Circumstances (&quot;We believed someone inside the property was in grave danger if we did not enter the property immediately and that's when we found a cache of stolen Big Screen TVs!) and Good Faith (the Warrant was authorized for the wrong street address of the target but we found the evidence of an unrelated crime in a place the warrant authorized us to search. Everything but the goofed up address was done by the book.).
It's generally correct in the American system that everything not forbidden is permitted. But the law you're looking at isn't really an exception. You have the legal right to tamper with evidence if tampering is not illegal, but this statute makes it illegal. The language you've highlighted merely says that the law does not apply to those who have some other affirmative grant of authority to do so. So if you stab someone to death in your kitchen, you can't remove the body or other evidence, but the detectives investigating the case can, because they have the legal authority to process the scene and maintain the evidence for trial. So the law is similar to the &quot;speaking in public&quot; hypothetical, but that doesn't make it meaningless. Because of the First Amendment, that law doesn't actually outlaw anything, but the tampering law faces no such legal barriers. You had the right to tamper until the government said you didn't. Now that it says you don't, you can only do it on the government's terms, which require an affirmative grant of authority.
Different exclusionary rules have different reasons. Hearsay is frequently inadmissible because it's less reliable for the court to hear Alice saying &quot;Bob told me that Carol hit him&quot; than to hear Bob saying &quot;Carol hit me.&quot; Another even more critical problem with hearsay testimony is that the defense cannot cross examine the person who made the statement in court. If Bob is there, the defense can ask questions such as &quot;where did Carol hit you&quot; and &quot;did Carol use her right or left hand&quot; to clarify the testimony or call its veracity into question. Alice, not having been a direct witness to the act, will not be able to respond to many of these questions. united-states Evidence obtained in violation of a constitutional right is inadmissible because admitting it amounts to allowing police or prosecutors to violate people's constitutional rights in order to obtain convictions. Not only does an unconstitutional search itself violate the rights of the person being searched, but so does the use of evidence acquired in such a search. See Fruit of the poisonous tree at Wikipedia and the cases linked therein, especially Silverthorne Lumber Co. v. United States and Nardone v. United States.
If you comply without protest, this will be taken as consent to a search, and make anything found admissible. One can verbally object. The ACLU suggests the form &quot;I do not consent to searches&quot; to any request to search your car, your house, your person or any other property of yours or under your control. There is no need to give any reason for your refusal. However, one is required to follow any &quot;lawful orders&quot; given by police officer during a traffic or pedestrian stop.[1] Failure to follow lawful orders may well be a separate crime. Even if the lawfulness is suspect, it is usually better to comply and challenge the order later, in court. One might make a second objection, such as &quot;I don't see that you have probable cause for a search, and I do not give consent. Are you ordering me to permit a search?&quot; If the officer clearly orders you to open the trunk, one might place the keys in reach of the officer, while not opening the trunk oneself. That might help establish that there was no consent to the search, and require probable cause to be established before anything found could be used in a trial. One might also repeat, as the officer opens the trunk &quot;I am not consenting to any search.&quot; If it is possible for any person present to record video without obstructing the officer(s) that might hrlp to establish the absence of consent and other relevant facts, later. People in general have a right to make such recordings, but not to obstruct or interfere with police activity. Duty to Obey The Washington Post in an opinion article dated July 23, 2015 &quot;Sandra Bland and the ‘lawful order’ problem&quot; wrote: The Bland video brings up an overlooked problem with the law of police-citizen encounters. The police can back up their orders with force because it’s often a crime to disobey a lawful order from a police officer. But from a citizen’s perspective, it’s often impossible to know what is a lawful order. As a result, it’s often impossible for citizens to know what they can and can’t do during a police encounter. The first problem is knowing what counts as an “order.” If an officer approaches you and asks you to do something, that’s normally just a request and not an order. But if there’s a law on the books saying that you have to comply with the officer’s request, then the request is treated as an order. You can’t know what is an “order” unless you study the law first, which you’re unlikely to have done before the officer approached you. In the case of Oregon v Rose Mary ILLIG-RENN, 42 P.3d 62 (2006) The Supreme Court of Oregon held that ORS 162.247(1)(b), a statute that makes it a crime to &quot;refuse[] to obey a lawful order by [a] peace officer.&quot; is constructional against challenges under the Oregon and US Federal constitutions. Sources [1]: Virginia Code section 18.2-464. Failure to obey order of conservator of the peace Virginia Code Section § 18.2-463. Refusal to aid officer in execution of his office. Florida Statutes 316.072(3) &quot;*OBEDIENCE TO POLICE AND FIRE DEPARTMENT OFFICIALS.—It is unlawful and a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083, for any person willfully to fail or refuse to comply with any lawful order or direction of any law enforcement officer, traffic crash investigation officer as described in s. 316.640, traffic infraction enforcement officer as described in s. 316.640, or member of the fire department at the scene of a fire, rescue operation, or other emergency. *&quot; (Oregon) ORS 162.247(1)(b) Interfering with a peace officer or parole and probation officer A person commits the crime of interfering with a peace officer or parole and probation officer if the person, knowing that another person is a peace officer or a parole and probation officer ... Refuses to obey a lawful order by the peace officer or parole and probation officer. California Vehicle Code - VEH § 2800 (a) It is unlawful to willfully fail or refuse to comply with a lawful order, signal, or direction of a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code, when that peace officer is in uniform and is performing duties pursuant to any of the provisions of this code, or to refuse to submit to a lawful inspection pursuant to this code. North Carolina § 20-114.1. Willful failure to obey law-enforcement or traffic-control officer (a) No person shall willfully fail or refuse to comply with any lawful order or direction of any law-enforcement officer or traffic-control officer invested by law with authority to direct, control or regulate traffic, which order or direction related to the control of traffic.
The validity of the NDA is not an easy question, but a related one is more clear. A lawyer in the U.S. in most states is not permitted to threaten criminal or administrative action (e.g. reporting someone to immigration or tax officials), to gain advantage in a civil case. You can unilaterally bring criminal charges or take administrative action, but it is deemed to be unethical and against public policy to refrain from bringing criminal charges or taking administration action to gain civil advantages. An NDA of the type described arguably violated the same public policy and might be invalidated as a result. Put another way, there is a privilege to make certain reports to public officials without legal consequences and such an NDA might violate that privilege. Some of these privileges found in what are called "whistle blower" statutes specifically prohibit this kind of agreement as to some specific kinds of illegal conduct, but not others. There isn't a general rule. This said, it is not black and white. For example, a private NDA can't prevent someone from testifying under subpoena, but can prevent someone from voluntarily testifying in the absence of a legal compulsion to do so such as a subpoena. Suppose a woman is sexually assaulted at work, and is given an NDA to sign. Can the company legally require her not to disclose the conduct of an illegal activity? I can imagine this example coming out different ways in different jurisdictions. For example, some states have a legal duty (rarely enforced) that requires people to report felonies, and an NDA in this case would contradict that affirmative legal duty, while others do not. Another source of gray in the analysis is that there is a difference between not reporting a sexual assault that actually happened, and, as part of a larger settlement, executing an affidavit stating under penalty of perjury and under oath that a sexual assault didn't happen. The first is potentially an NDA that is void as a matter of public policy. The other, in principle, is a settlement that the person signing the affidavit can only enter into if it is true. There is nothing, in general, wrong, about requiring someone to confirm that certain representations are true as part of a business transaction or contract and allowing the contract to go forwards only if certain facts are true. The gray gets deeper, because whether a sexual assault happened or not is not always a subjectively black and white clear issue of pure fact. (It is subjective because an affidavit or affirmation is made to the best of the declarant or affiants' knowledge and belief, not as a matter of objective fact.) For example, someone may not have perfect memory of what happened, or there could be doubt over the question of whether the perpetrators acted recklessly (the Model Penal Code intent requirement for sexual assault) or merely with criminal negligence (which would not be sexual assault under the Model Penal Code). A statement made under oath about whether a sexual assault happened to the best of your knowledge, thus, might be a mixture of factual issues (A penetrated B at a certain date and time) and legal or not perfectly factually known ones (A acted with X intent regarding consent during that act). So, in a case where there was some room to argue either way about how to characterize what happened and about what actually did happen, there might be some room for a settling party to make a non-perjured statement consistent with the settlement and then to agree not to a true NDA, but instead to not make statements which, if the affidavit is true, would be false. In a plea bargain in a criminal case, one can plead "no contest" without agreeing that the crime factually happened, but that isn't really possibly in the context of an affidavit about what really happened, with an NDA limited to not disclosing the incident since it was already agreed as a matter of sworn fact that there is nothing to disclose that rises the level of a crime.
From what I can gather, a US citizen could literally commit first-degree murder in another country, and not be held liable in US courts. Yes. From looking at the decision in Kiobel v. Royal Dutch Petroleum Co., it seems a corporation could go so far as to commit genocide in another country and not be held accountable in US courts. Yes. Why is US law set up in this way, and why has nothing been done to change it? Extraterritorality The modern nation-state is part of the Westphalian tradition of sovereignty which takes as a core value that the internal laws of each nation-state are a matter for it and it alone. This is baked into international law as part of the UN charter: &quot;nothing ... shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state.&quot; The basic assumption of criminal law is that it is, by default, territorial. If a US national commits a crime in the Ivory Coast, then that is primarily the Ivory Coast's problem to deal with. There are both practical and political reasons why this is a good idea. The practical matters are that law enforcement and the courts in the Ivory Coast have the on-the-ground resources and knowledge to investigate and prosecute the crime and the US doesn't. US police forces can't collect evidence and interview witnesses in the Ivory Coast unless the Ivory Coast allows it. US courts can't subpoena witnesses. On the flip side, foreign jurisdictions don't have to follow the US Constitution when conducting searches and beating up, I mean, interrogating, suspects. That may make a lot of the evidence collected in foreign jurisdictions inadmissible in US courts. The political reasons are the US (and anyone else) should stay the f&amp;^% out of the internal operations of other countries. The treaty of Westphalia ended 30 years of the most brutal warfare in history, which killed an estimated one-third of Europe's population, which was largely fought because the ruler of country X wanted to tell the ruler of country Y what religion they should have. Extraterritorality in US law Constitutional restrictions can limit exterritoriality. First, the statute must be within Congress' power to enact. Second, neither the statute nor its application may violate due process or any other constitutional right (see above). The presumption is that Federal laws only apply within US territory. To be extraterritorial, Congress must make this clear, ideally explicitly, but the courts can find that some laws are implicitly extraterritorial based on their language. Other nation's approach is different. For example, a French citizen is subject to French as well as local law everywhere in the world.
The 4th Amendment exclusionary rule applies automatically in cases where law enforcement obtains evidence illegally (subject to exceptions not applicable here). In its 1920 decision in Burdeau vs. McDowell, the U.S. Supreme Court held that the 4th amendment is not applicable to searches by private parties, even when such searches are clearly illegal. This rule doesn't apply, however, if the private citizens was acting as an agent of the government. A more recent case reaffirming and clarifying Burdeau is United States v. Jacobsen 466 U.S. 109 (1984) in which a private courier finds drugs in a package and shows it to police who test the contents (the search was upheld as valid). If the defendant makes that argument, the defendant seeking to exclude the evidence bears the burden of proving by a preponderance of the evidence that the private citizen acted as an agent of the government. U.S. v. Feffer, 831 F.2d 734 (7th Cir. 1987). Another case discussed here notes that: As it relates to computer files, states still differ on how broad the application of the Private Search Doctrine runs, but all seem to agree that if a document or photo has been opened by a private party, an officer can review that file or photo without a warrant. In People v. Wilson, 56 Cal. App. 5th 128 (2020), police opened 4 images they received from NCMEC (the National Center for Missing and Exploited Children) who received the images in a CyberTip from Google. Neither NCMEC nor Google had opened these images in this case, but all 4 images had been reviewed by Google in the past and identified previously as child porn by their matching hash values. So here, the officer’s actions—consisting of opening the electronic files submitted to it by NCMEC and viewing the four images attached to Google’s Cybertip—did not exactly replicate Google’s private actions. The Wilson court set out to determine the degree to which the officer’s additional invasion of Wilson’s privacy exceeded the scope of Google’s private search (the search of his emails against known hash values). Before the officer even received Wilson’s photographs, Google had already reviewed identical images in the past; scanned all of Wilson’s electronic communications to search for content with matching hash values; flagged four of Wilson’s images as matching images Google had previously observed; classified the matching images as depictions of prepubescent minors engaged in sexual acts; forwarded all four images to NCMEC as part of a Cybertip report; and terminated Wilson’s account. The Jacobsen case above explained that, “[t]he Fourth Amendment is implicated only if the authorities use information with respect to which the expectation of privacy has not already been frustrated.” Id. at 117. Because Google’s actions already frustrated any expectation of privacy Wilson possessed in the four photographs at issue, no privacy interest remained in the four images, so no expectation of privacy was violated. Wilson at 219. Because the assigned hash values, or “digital fingerprints,” are representative of the contents depicted in the photographs themselves, the government gained no new material information by viewing the images. The agent merely confirmed Google’s report that Wilson uploaded content constituting apparent child pornography. Id. at 220. When someone who is not law enforcement obtains evidence illegally, the court sometimes engages in a non-constitutional discretionary balancing test to determine if the evidence is admissible. Sometimes it comes in, sometimes it doesn't. I'll find a case setting forth the exact test if I have time. The fact that evidence is &quot;irrefutable&quot; (not that there is any such thing) and widely publicly known is absolutely irrelevant. The fact that a juror knows it would be grounds for excusing the juror for cause and for moving the venue of the trial where they can find enough jurors who aren't familiar with the evidence if they can't manage it in the usual venue.
The Likely Ruling Assuming points 1 and 2 in the question, all the evidence from the trunk would be inadmissible, and if there really is no other evidence against Bob, then Bob would go free. This is highly improbable; the prosecution would find some grounds to dispute the unlawful nature of stop and search, even if ones the court would not accept. A better version might be &quot;The judge rules that the stop and search were unlawful, and is upheld by the appellate court&quot;. That is more realistic and has the same result. Inevitable Discovery The only grounds I can see for any other result is &quot;inevitable discovery&quot;. If other police were, say, already staking out Bob's house with a warrant to search the car, and Bob was on the way to that house at the time of the stop, then the prosecution could argue that they would inevitably have conducted a legal search of Bob's car and found the same evidence. The conditions for invoking this doctrine rarely occur, but it is possible. After the Trial There is no way that Cal's body can be Bob's property, so it would be released to Cal's next of kin or legal executor. Unless Bob was Cal's next of kin, it is hard to see any way that the body would be handed over to Bob. Cal's clothes are almost surely part of Cal's estate, although it is in theory possible that they are Bob's property. No claim of ownership can be used against Bob in a later trial, because any later trial would be barred by double jeopardy. In any case, while evidence from the trunk would all be inadmissible in a trial of Bob, it might be admissible in a possible later trial of Joe, Bob's alleged accomplice. Therefore the police might well retain all the items (except the body) as possible future evidence. Terminology This is actually about the exclusionary rule itself, not about the &quot;fruit of the poison tree&quot; doctrine. What is the difference? If an unlawful search finds evidence, that evidence is inadmissible under the exclusionary rule. If an unlawful search merely finds a lead, evidence later found via the lead is considered as &quot;fruit of the poisoned tree&quot; and is therefore inadmissible. For example, if the murder weapon is found in Bob's car after an unlawful search, the exclusionary rule applies. But if a note saying &quot;stuf at 1234 Elm&quot; is found during the unlawful search, and the police visit 1234 Elm Street, and find the murder weapon there, that is &quot;fruit of the poisoned tree&quot;. Why does it matter? Because if the police find a different lead to 1234 Elm, so that the investigation or search at that address is not based solely on the results of the unlawful search, then the evidence found at 1234 Elm may be admissible, while corroboration will not save the evidence actually found by the unlawful search. It is a subtle but sometimes important distinction.