In this case, was the legality of the entry by the family members submitted to the jury, or just to the judge in pretrial? Seems like they should have asked the jury to consider whether the entry was illegal and to disregard the evidence if so (see 38.23, which states that when the issue is raised, "the jury shall be instructed" to disregard evidence obtained in violation of the section, if they find it was). If they fail to request this, can the State argue that the issue has been waived?

Off-duty officers, vigilante groups, and worried family members are not the same three groups of people and should not be considered the same way.

The exclusionary rule is supposed to keep law enforcement from pushing the envelope, so, clearly, off duty officers would fall under that scope.

Vigilante groups are not law enforcement, so why would an exclusionary rule about law enforcement behavior apply to them? How would that promote proper law enforcement behaviors? Prosecutors and law enforcement supervisors cannot train vigilantes on the law, so exclusion is inappropriate. And yes, I would prosecute a vigilante even if they got me my best evidence in a case if they really broke a law.

And families.....WHY would you want to tell a family who is in fear for the life of their child that they have to wait to look for their child until law enforcement feels there is probable cause?? They aren't looking for evidence for use in a case--they are looking for their loved one. Not only would the exclusionary rule be completely unknown to them, but would be contrary to what any good parent should do! Applying the rule would serve no purpose--we cannot train them either, so it would not promote proper law enforcement behavior.

While I agree with you, suzanne, article 38.23 doesn't make the distinctions you argue for. It prohibits the introduction of any "evidence obtained by an officer or other person" in violation of the law. So if a civilian obtains evidence via the commission of crime, the defense can object. But the defendant who is unsatisfied with the trial court's factual determination on that issue should be required to ask the jury to make the call.

Some of you may remember the "Silver Platter doctrine", when evidence illegally obtained by Federal law enforcement officers was subject to suppression, but evidence illegally obtained by local / state law enforcement officers was not suppressed in Federal courts. Changing 38.23 to limit it to law enforcement could (not would, but could) have the effect of law enforcement saying "we can't go in there, but you can, then let us know what you find". So the rule of 38.23 has its purpose, and while overly broad, and while leading to bad results in specific cases, would it really be better to limit it to law enforcement? What about the refrain heard so many times that "it is not OK to take the law into your own hands?" I don't always like the rule, and I am even more opposed to courts that attempt to craft "exceptions" where none really exist in order to reach the result they want. However, the rule serves a valid purpose, and provides clear guidance to everyone.

I'm not sure that a police officer who "encourages" a private citizen to do something the officer can't do so that "you can tell me what you find" is going to get around 38.23. Isn't it the courts' view that when the police encourage a private citizen to do something that the police couldn't lawfully do, the citizens act would be unlawful under 38.23 because the citizen actually acted on behalf of the police. In the Pitonayak case, the parents did NOT act at the urging of the police--the police had already told them the police could not lawfully enter the apartment. The parents acted solely on their own, spurred on by the fact that they had found their daughter's car at the apartment complex(something the police apparently didn't know at the time). I still believe there is an abandonment issue because Pitonayak certainly didn't intend to return to the apartment from Mexico.

Janette A

I agree that in specific cases where citizens are encouraged to act on behalf of law enforcement, even a revised rule would result in suppression. However, my example was where the citizens decide to act and are not deterred by law enforcement. I also agree that Pitonyak probably had abandoned the property. My point was that a more limited rule could result in situations not unlike those during the period when the silver platter doctrine was in place. Having taught criminal justice for several years, it seems easier to have a bright line rule where the facts determine the result than to have a rule that requires more interpretation itself (e.g. who was the actor, and whom were they acting for - themselves or law enforcement) in addition to the facts that must be determined in each situation to determine if there was a violation of the law in obtaining the evidence.

How about the parents simply believed these were "exigent circumstances" and thus the warrantless search should be allowed. They feared for the immediate safety of a person, their child. The fear was not unfounded, but they were too late. If you put that to a jury of parents they will do the right thing... no need to change the law.

It is probably fair to say that a parent's fear for their child should not be held to the same standard as an investigating officer's fear. Or rather ask if the mythical reasonable person would preceive these as "exigent circumstances" if it were their own child.

Politicians promote many types of policy changes as good "for the children" because it is a good way to get votes from parents.


[edit - sorry I didnt notice this issue was covered in the original article]

[This message was edited by AlexLayman on 02-08-08 at .]