National Academies Press: OpenBook

Policing and Public Transportation (2022)

Chapter: C. The Attenuation Doctrine

« Previous: B. The Exclusionary Rule and Exceptions to the Rule
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Suggested Citation:"C. The Attenuation Doctrine." National Academies of Sciences, Engineering, and Medicine. 2022. Policing and Public Transportation. Washington, DC: The National Academies Press. doi: 10.17226/26652.
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Suggested Citation:"C. The Attenuation Doctrine." National Academies of Sciences, Engineering, and Medicine. 2022. Policing and Public Transportation. Washington, DC: The National Academies Press. doi: 10.17226/26652.
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18 TCRP LRD 58 was a violation of constitutional rights and not on the link be- tween the violation of a right and the subsequent discovery of evidence.”205 There are exceptions to the exclusionary rule that may re- sult in the admissibility of the challenged evidence.206 As the following examples illustrate, if an exception applies, then the exclusionary rule does not apply, and the evidence is admissible. First, there is the independent source doctrine, an excep- tion that permits trial courts to admit evidence obtained in an unlawful search if officers independently acquired the evidence from a separate, independent source.207 Second, there is the inevitable discovery doctrine, an excep- tion that permits evidence to be admitted, because the evidence “would have been discovered even without the unconstitutional source.”208 Third, if the attenuation doctrine applies, discussed below, then “[e]vidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that ‘the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evi- dence obtained.’”209 A fourth exception is the special needs doctrine, also dis- cussed hereafter. Because the attenuation and special needs doctrines may be invoked less frequently and/or may be less familiar than other exceptions to the exclusionary rule, the next two subsections analyze cases in which the doctrines were at issue. C. The Attenuation Doctrine In Strieff, supra, the Supreme Court considered the appli- cability of the attenuation doctrine. The issue was whether the attenuation doctrine applies “when an officer makes an un- constitutional investigatory stop; learns during that stop that the suspect is subject to a valid arrest warrant; and proceeds to arrest the suspect and seize incriminating evidence during a search incident to that arrest.”210 The Court held that the attenuation exception to the exclu- sionary rule did not apply in that case. In an opinion by Jus- tice Thomas, the Court held that “even when there is a Fourth Amendment violation, [the] exclusionary rule does not apply when the costs of exclusion outweigh its deterrent benefits. In some cases, for example, the link between the unconstitutional conduct and the discovery of the evidence is too attenuated to justify suppression.”211 In Strieff, Officer Fackrell, as part of a stop, based on an anonymous tip, had detained Strieff for suspected narcotics 205 Padilla, 143 F. Supp.2d at 471 (citations omitted). 206 Strieff, 136 S. Ct. at 2061, 195 L. Ed.2d at 407 (citations omitted). 207 Id. (citations omitted) (quotation marks omitted). 208 Id. (citations omitted) (quotation marks omitted). 209 Id. (citations omitted) (quotation marks omitted). 210 Id., 136 S. Ct. at 2059 195 L. Ed.2d at 405. 211 Id., 136 S. Ct. at 2059, 195 L. Ed.2d at 409. In McGann v. Northeast Ill. Regional Commuter R.R. Corp.,195 a class action pursuant to § 1983, the plaintiffs alleged that the Metropolitan Rail (Metra) police had conducted a search of every vehicle that left Metra’s 47th Street parking lot. The district court granted a summary judgment to the commuter railroad and its officials. The Seventh Circuit reversed and remanded the case, holding that six Metra police officers’ statements and ac- tions could suggest to a reasonable person that the officers were not engaging in an effort to obtain consent but rather were stop- ping the plaintiffs to conduct a search that the plaintiffs were not free to refuse. In State v. Carter,196 a case involving a fare sweep that is dis- cussed in Section VI. E, infra, the Maryland Court of Appeals held that Carter had not “impliedly consented to the seizure by traveling on the barrier-free Light Rail system,”197 because, in part, there was no “express prior notice that a person may be subject to a search or seizure.”198 B. The Exclusionary Rule and Exceptions to the Rule In the 20th century, as the Supreme Court explained in Utah v. Strieff,199 the exclusionary rule “became the principal judicial remedy to deter Fourth Amendment violations.”200 The Fourth Amendment of the United States Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]” . . . War- rantless searches and seizures are presumptively unreasonable under the Fourth Amendment. . . . When police have obtained evidence through a warrantless search or seizure, the State bears the burden to demonstrate that the search or seizure was reasonable, by establishing the applicability of one of the “few specifically established and well- delineated exceptions” to the warrant requirement.201 The Supreme Court has held that under its precedents “the exclusionary rule encompasses both the ‘primary evidence ob- tained as a direct result of an illegal search or seizure’ and . . . ‘evidence later discovered and found to be derivative of an ille- gality,’ the so-called ‘fruit of the poisonous tree.’”202 Thus, under the exclusionary rule, because of the fruit of the poisonous tree doctrine, evidence obtained illegally may be inadmissible.203 However, the exclusionary rule applies only when the rule’s “‘de- terrence benefits outweigh its substantial social costs.’”204 As one federal district court has stated, in § 1983 civil rights actions, “the focus of the inquiry” is “on the question of whether there 195 8 F.3d 1174, 1186 (7th Cir. 1993), rehearing denied, 1994 U.S. App. LEXIS 10070, at *1 (7th Cir. 1994). 196 472 Md. 36, 244 A.3d 1041 (Md. Ct. App. 2021). 197 Id., 472 Md. at 58, 244 A.3d at 1053. 198 Id., 472 Md. at 59, 244 A.3d at 1054. 199 136 S. Ct. 2056, 2061, 195 L. Ed.2d 405, 407 (2016) (citation omitted). 200 Id. (citation omitted). 201 Carter, 472 Md. at 55, 244 A.3d at 1052 (citations omitted). 202 Strieff, 136 S. Ct. at 2061, 195 L. Ed.2d at 407 (citation omitted) (some internal quotation marks omitted). 203 Padilla, 143 F. Supp.2d at 471. See also, Strieff, 136 S. Ct. at 2065, 195 L. Ed.2d at 417. 204 Strieff, 136 S. Ct. at 2061, 195 L. Ed.2d at 407 (citation omitted).

TCRP LRD 58 19 activity as Strieff left his house. The stop led to the discovery of an outstanding warrant for a traffic violation, leading Officer Fackrell to arrest Strieff. When Officer Fackrell searched Strieff, the officer discovered illegal drugs and drug paraphernalia. At a suppression hearing, the prosecutor “conceded that Officer Fackrell lacked reasonable suspicion for the stop but argued that the evidence should not be suppressed because the existence of a valid arrest warrant attenuated the con- nection between the unlawful stop and the discovery of the contraband.”212 The trial court considered the “valid arrest war- rant to be an ‘extraordinary intervening circumstance.’”213 After the Utah Supreme Court reversed the trial court’s decision, the U.S. Supreme Court “granted certiorari to resolve disagree- ment about how the attenuation doctrine applies where an un- constitutional detention leads to the discovery of a valid arrest warrant.”214 The Supreme Court held that “[t]he attenuation doctrine evaluates the causal link between the government’s unlawful act and the discovery of evidence, which often has nothing to do with a defendant’s actions. And the logic of our prior attenua- tion cases is not limited to independent acts by the defendant.”215 For the Court, the question was “whether the discovery of a valid arrest warrant was a sufficient intervening event to break the causal chain between the unlawful stop and the discovery of drug-related evidence on Strieff ’s person.”216 In reaching its decision that the attenuation doctrine, as an exception to the exclusionary rule, did not apply, the Court analyzed three factors: (1) the temporal proximity between the unconstitutional conduct and the discovery of the evidence to determine how closely the discovery of evidence followed the unconstitutional search; (2) the presence of intervening circum- stances; and (3) “‘particularly’ significant, . . . ‘the purpose and flagrancy of the official misconduct.’”217 The first factor, the temporal proximity of the unconstitu- tional conduct and the discovery of the evidence, favored the suppression of the evidence. However, the predominant factor, and the one that favored the admission of the evidence, was the presence of intervening circumstances: [T]he warrant was valid[;] it predated Officer Fackrell’s investiga- tion[;] and it was entirely unconnected with the stop. And once Officer Fackrell discovered the warrant, he had an obligation to ar- rest Strieff. “A warrant is a judicial mandate to an officer to conduct a search or make an arrest, and the officer has a sworn duty to carry out its provisions.” . . . Officer Fackrell’s arrest of Strieff thus was a ministerial act that was independently compelled by the pre-existing warrant. And once Officer Fackrell was authorized to arrest Strieff, it 212 Id., 136 S. Ct. at 2060, 195 L. Ed.2d at 406. 213 Id. (citations omitted) (some internal quotation marks omitted). 214 Id., 136 S. Ct. at 2060, 195 L. Ed.2d at 407 (citations omitted). 215 Id., 136 S. Ct. at 2061, 195 L. Ed.2d at 408. 216 Id. 217 Id., 136 S. Ct. at 2062, 195 L. Ed.2d at 408 (citations omitted) (some internal quotation marks omitted). was undisputedly lawful to search Strieff as an incident of his arrest to protect Officer Fackrell’s safety.218 The Court also considered the third factor, the purpose and flagrancy of any official misconduct. The court held that Officer Fackrell’s conduct in stopping Strieff was not flagrant and was “at most negligent.”219 “[T]he evidence Officer Fackrell seized as part of his search incident to arrest is admissible because his dis- covery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized from Strieff incident to arrest.”220 In contrast, in United States v. Garcia,221 based on the attenu- ation doctrine, the Ninth Circuit ruled that the evidence the police officers had seized, as well as statements made by Garcia, had to be suppressed. The police officers, although knowing nothing about Garcia, had entered his home and detained him. The entry and detention occurred after the officers observed an individual run from them, while holding his waistband, who ignored their commands to stop before the person ran into an apartment where Garcia resided.222 A records check revealed that Garcia was subject to a supervised release condition that authorized suspicionless searches of his residence. On discov- ery of the supervised release condition, the officers reentered Garcia’s home, conducted a full search, and found methamphet- amine and other evidence. On appeal, the issue was whether the discovery of Garcia’s supervised release with a suspicionless search condition was a sufficient intervening circumstance within the meaning of the attenuation doctrine.223 The appeals court stated that “[t]he attenuation doctrine is an exception to the usual rule of exclu- sion or suppression of the evidence. It applies when ‘the con- nection between the illegality and the challenged evidence’ has become so attenuated ‘as to dissipate the taint caused by the illegality.’”224 The court applied the three factors, previously dis- cussed, based on the Supreme Court’s decision in Strieff.225 However, unlike the outstanding arrest warrant in Strieff, a “‘judicial mandate,’” the appeals court in Garcia held that “[t]he same is not true for conditions of [a] supervised release that allow for suspicionless searches. . . . [T]he suspicionless search condition . . . did not . . . require [the officers] to exercise that authority.”226 The court held “that the attenuation doctrine does not apply when an officer’s decision to exercise his discretion- ary authority is ‘significantly direct[ed]’ by information learned during an unlawful search.”227 218 Id., 136 S. Ct. at 2062-2063, 195 L. Ed.2d at 409 (citations omitted). 219 Id., 136 S. Ct. at 2063, 195 L. Ed.2d at 409. 220 Id., 136 S. Ct. at 2064, 195 L. Ed.2d at 411. 221 974 F.3d 1071 (9th Cir. 2020). 222 Id. at 1074. 223 Id. at 1073 (footnote omitted). 224 Id. at 1076 (citations omitted) (some internal quotation marks omitted). 225 Id. 226 Id. at 1077 (citation omitted) (emphasis in original). 227 Id. (citations omitted).

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Compliance with transit-equipment and operations guidelines, FTA financing initiatives, private-sector programs, and labor or environmental standards relating to transit operations are some of the legal issues and problems unique to transit agencies.

The TRB Transit Cooperative Research Program's TCRP Legal Research Digest 58: Policing and Public Transportation provides a comprehensive analysis of constitutional issues and summarizes current laws and practices that apply to policing by public transportation agencies.

Supplemental to the Digest is Appendix A: Agreements, Policies, Reports, and Other Documents Provided by Public Transportation Authorities for the Report.

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