The Founding Fathers created the Fourth Amendment to the U.S. Constitution specifically to limit the power of the government to seize and search people, their property, and their homes.
The Constitution Center says, “Today the Fourth Amendment is understood as placing restraints on the government any time it detains (seizes) or searches a person or property. The Fourth Amendment also provides that ‘no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.’ The idea is that to avoid the evils of general warrants, each search or seizure should be cleared in advance by a judge, and that to get a warrant the government must show ‘probable cause’—a certain level of suspicion of criminal activity—to justify the search or seizure.”
Exclusionary Rule Places Constraints of Police Conduct
Following the creation of organized police forces by the states in the early to mid 1800s, the U.S. Supreme Court held the view that the evidence seized by the police was admissible in courts of law, regardless of the manner in which that evidence was acquired. It was not until 1914—some 135 years after the ratification of the Fourth Amendment that the Supreme Court in Weeks v. United States placed restraints on the evidence-gathering powers of the police by creating what became known as the federal “exclusionary rule.”
Forty-seven years later in Mapp v. Ohio, the Supreme Court extended the exclusionary rule to state courts—namely, that evidence obtained unlawfully by local or state police during a search and seizure was inadmissible in a criminal trial. Over the next twenty-seven years, the Supreme Court created four broad exceptions to the exclusionary rule. They are:
- Probable cause/search incident to a lawful arrest: When a warrantless arrest is made with probable cause and a necessary search is conducted incident to that lawful arrest, any evidence seized is admissible in a criminal trial.
- Inevitable Discovery Rule: Evidence discovered unlawfully but which would have been discovered by lawful means is admissible in a criminal trial.
- The Good Faith Exception: Evidence obtained by police executing a warrant they believe is properly issued but later deemed improperly issued because of technical problems is admissible in a criminal trial.
- Independent Source Doctrine: Evidence obtained both illegally (unlawful entry) and legally (with post-arrest search warrant) is admissible in a criminal trial.
The independent source doctrine was recently on display in the Seventh Circuit Court of Appeals in the case of United States v. Huskisson.
In 2016, Huskisson was indicted for possessing with intent to distribute 500 grams or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1).
The case against Huskisson began in Indianapolis, Indiana in February 2016 after the arrest of Anthony Hardy by Drug Enforcement Administration (“DEA”) agents on drug conspiracy and related offenses. Explaining what happened next, the Seventh Circuit said:
“Seeking to cut a deal, Hardy immediately admitted his role in the conspiracy, led DEA agents to his drugs and guns, and rolled over on two local drug dealers. One of those dealers was Paul Huskisson. Huskisson was previously unknown to the Indianapolis DEA task force, but Hardy provided plenty of intelligence.”
That intelligence included multiple purchases of amphetamine Hardy made from Huskisson over the previous five months at $8,000 per pound.
DEA agents, of course, shifted their investigative interests toward Huskisson. They immediately set up a recorded telephone conversation between Hardy and Huskisson during which Huskisson agreed to deliver twelve pounds of amphetamine to Hardy. DEA agents also eavesdropped on an additional series of phone calls (nine altogether) between the pair as they discussed the specifics and logistics of the purchase/delivery of the drugs. The pair ultimately agreed that the purchase/delivery would take place at Huskisson’s residence.
DEA Fails to Obtain Search Warrant, Illegally Searched Residence
DEA agents followed Hardy to Huskisson’s residence where they set up surveillance with a force entry team of DEA agents and local law enforcement standing by. Although they had ample evidence at that point to seek and secure a search warrant, the agents did not do so. Instead they maintained surveillance of the Huskisson’s residence which picked up two men in a vehicle pulling into the driveway, getting out of the vehicle with cooker in hand, and entering the residence.
Hardy exited the residence shortly afterwards, giving nearby agents the signal that the prearranged purchase had been completed. The entry team immediately entered the residence and arrested Huskisson and the two men who had just entered the residence. Agents saw the cooker sitting in plain sight in the kitchen. It contained 10 saran-wrapped packages of a substance that field tested positive for amphetamine.
DEA Agents Seek Warrant After Search of Residence
It was only deep into the night that DEA agents sought and secured a search warrant for Huskisson’s residence. The warrant application detailed the extensive drug activities between Hardy and Huskisson. The Seventh Circuit pointed out that the application contained just two sentences that formed the basis of Huskisson’s appeal before that court:
“The law enforcement officers observed an open cooler with ten saran wrapped packages that contained suspected methamphetamine. The suspected methamphetamine later field tested positive for the presence of methamphetamine.”
In rejecting Huskisson’s effort to have the search and seizure declared unconstitutional, the appeals court stated at the outset of its discussion of the independent source doctrine that:
“The government urges us to apply the independent source doctrine here, arguing that the warrant obtained after the illegal entry was an independent legal source of the methamphetamine evidence. Huskisson disagrees, arguing that the warrant application referenced the illegally obtained evidence, so it could not be a legal source. Under [Supreme Court precedent], to decide whether the warrant is an independent legal source, we ask two questions: first, did the illegally obtained evidence affect the magistrate’s decision to issue the warrant? And second, did the illegally obtained evidence affect the government’s decision to apply for the warrant? “
The Seventh Circuit concluded its lengthy analysis with this broad finding:
“Huskisson’s protests do not clear that bar. The district court faithfully applied the standards we laid out in [prior precedents] to determine the government’s motives in filing the search warrant application. The court carefully weighed the evidence from both sides; when faced with two inconsistent statements from the same witness, the court credited one based on the totality of the evidence. In so doing, the district court concluded that an errant statement by Detective Kinney did not outweigh the other evidence of the government’s plan to request a search warrant, regardless of what they found in the house. This was not a ‘one-off,’ ill-considered decision by the district court. Rather, before, during, and after the jury trial, the court closely tracked the issue with its superior vantage point hearing and seeing the witnesses and presiding over the presentation of all the evidence. This decision was well-reasoned and well-supported, so we do not reverse it.”
Four years before it pronounced the independent source doctrine in 1988, the U.S. Supreme Court in Nix v. Williams said the very purpose of the exclusionary rule is to put “the police in the same, not a worse, position than they would have been in if no police error had occurred.”
That is the legal premise upon which the Seventh Circuit relied to uphold the unlawful police action in the Huskisson case. We disagree that decision.
The police action by the DEA and local law enforcement of storming Huskisson’s residence and undertaking a forced entry without a warrant was patently unlawful, and unnecessary. DEA agents had ample time and opportunity to secure a warrant. They did not. They understood that under the independent source doctrine they would be allowed to engage in unlawful conduct and it would be blessed by the federal courts.
At a minimum, it is a cheap (if not criminal) way to achieve a law enforcement objective.
In this particular case, the police became more akin to jack-booted government thugs trampling the Fourth Amendment guarantee than responsible law enforcement officials.