United States v. Thomas C. Hill

TACHA, Circuit Judge,

concurring.

I concur in the judgment of the court but write separately to express my skepticism at the majority’s discussion of the exclusionary rule’s applicability to the introduction of evidence under Fed.R.Evid. 404(b). I believe that the opinion adopts what amounts to a per se exclusion of illegally obtained evidence under Rule 404(b), and that such a rule is unwarranted.

The Supreme Court has stated repeatedly that the purpose of the exclusionary rule is to *683deter unlawful police conduct. See, e.g., Arizona v. Evans, — U.S. -, -, 115 S.Ct. 1185, 1191, 131 L.Ed.2d 34 (1995); New York v. Harris, 495 U.S. 14, 20, 110 S.Ct. 1640, 1644, 109 L.Ed.2d 13 (1990); Illinois v. Krull, 480 U.S. 340, 347, 107 S.Ct. 1160, 1165, 94 L.Ed.2d 364 (1987); Stone v. Powell, 428 U.S. 465, 485-88, 96 S.Ct. 3037, 3048-49, 49 L.Ed.2d 1067 (1976). Because deterrence is the central purpose of the exclusionary rule, when “the exclusionary rule does not result in appreciable deterrence, then, clearly, its use ... is unwarranted.” United States v. Janis, 428 U.S. 433, 454, 96 S.Ct. 3021, 3032, 49 L.Ed.2d 1046 (1976). But “it does not follow from the emphasis on the exclusionary rule’s deterrent value that anything which deters illegal searches is thereby commanded by the Fourth Amendment.” United States n Leon, 468 U.S. 897, 910, 104 S.Ct. 3405, 3413, 82 L.Ed.2d 677 (1984) (internal quotation omitted). Instead, “the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served.” United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974).

Using the amount of deterrence as a yardstick, the Supreme Court has determined that applying the exclusionary rule does not measure up in a number of situations. See, e.g., Evans, — U.S. at -, 115 S.Ct. at 1193 (applying good faith exception to evidence obtained pursuant to erroneous computer entry); Harris, 495 U.S. at 21, 110 S.Ct. at 1644 (holding that “the exclusionary rule does not bar the State’s use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of [Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) ]”); Krull, 480 U.S. at 360, 107 S.Ct. at 1172 (stating that good faith exception applied to evidence obtained under unconstitutional statute); Leon, 468 U.S. at 922, 104 S.Ct. at 3420 (stating that, when officers rely in good faith on a warrant, the exclusionary rule does not apply); Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 2509, 81 L.Ed.2d 377 (1984) (declining to apply the exclusionary rule to prohibit the prosecution from introducing illegally obtained evidence if the evidence would have inevitably been discovered); Stone, 428 U.S. at 494-95, 96 S.Ct. at 3052-53 (refusing to apply the exclusionary rule in federal habeas cases to claimed violations of the Fourth Amendment); Janis, 428 U.S. at 459-60, 96 S.Ct. at 3034-35 (concluding that the “exclusionary rule should not be extended to forbid the use in the civil proceeding of one sovereign of evidence seized by a criminal law enforcement agent of another sovereign”); Oregon v. Hass, 420 U.S. 714, 722, 95 S.Ct. 1215, 1221, 43 L.Ed.2d 570 (1975) (holding that statements obtained in violation of Fifth Amendment can be used for impeachment purposes); Calandra, 414 U.S. at 351-52, 94 S.Ct. at 621-22 (refusing to extend the exclusionary rule to grand jury proceedings); Harris v. New York, 401 U.S. 222, 226, 91 S.Ct. 643, 646, 28 L.Ed.2d 1 (1971) (allowing statements obtained in violation of the Fifth Amendment to be introduced as prior inconsistent statements); Walder v. United States, 347 U.S. 62, 65, 74 S.Ct. 354, 356, 98 L.Ed. 503 (1954) (concluding that the exclusionary rule does not bar the use of illegally obtained evidence for impeachment purposes).

Turning to the issue at hand, this court has long recognized the importance of Rule 404(b) evidence, especially in the context of prosecutions involving illegal narcotics. See, e.g., United States v. McKinnell, 888 F.2d 669, 676 (10th Cir.1989); United States v. Brown, 770 F.2d 912, 914 (10th Cir.1985), rev’d on other grounds sub nom. Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). Consequently, the societal cost of excluding such evidence is high. Cf. Colorado v. Connelly, 479 U.S. 157, 166, 107 S.Ct. 515, 521, 93 L.Ed.2d 473 (1986) (recognizing that “the exclusionary rule imposes a substantial cost on the societal interest in law enforcement”); Leon, 468 U.S. at 907, 104 S.Ct. at 3412 (“The substantial costs exacted by the exclusionary rule ... have long been a source of concern.”); Stone, 428 U.S. at 490, 96 S.Ct. at 3050 (noting that application of the exclusionary rule “deflects the truthfinding process and often frees the guilty”).

The deterrent value of excluding Rule 404(b) evidence, on the other hand, is minimal. In its most common application, the *684exclusionary rule deters a police officer from violating the Fourth Amendment because the government cannot use the evidence to prosecute the defendant for the crime proven by the unconstitutionally obtained evidence. This prohibition embodies the primary deterrent impact of the exclusionary rule. Here, however, the government introduced evidence from a prior search to show intent in defendant’s current prosecution. Assuming arguendo that the evidence was seized unconstitutionally, it is unclear whether excluding the evidence would serve a significant deterrent interest and therefore whether this situation constitutes an “area[] where [the exclusionary rule’s] remedial objectives are ... most efficaciously served.” Calandra, 414 U.S. at 348, 94 S.Ct. at 620.

Of course, it is also an overstatement to say that the use of illegally obtained evidence for Rule 404(b) purposes should always be permitted. In some cases, the exclusionary rule may deter police conduct even when the evidence is not used in the direct criminal prosecution. For example, suppose that the police conducted an illegal search following a defendant’s arrest but before trial, with the express purpose of uncovering “knowledge” evidence for trial. Such evidence may be admissible under Rule 404(b), but a court should nevertheless bar the evidence. Absent a sufficient nexus between the obtaining of the evidence and the subsequent prosecution, however, the exclusionary rule should not apply.1

In this case, the district court made no findings regarding whether the exclusionary rule had any applicability under these facts. Nevertheless, a remand for this determination is unnecessary because, as the majority concludes, any potential error is harmless. Accordingly, I concur in the judgment of the court.

. The Ninth Circuit has adopted a similar approach. See United States v. Lopez-Martinez, 725 F.2d 471, 476 (9th Cir.), cert. denied, 469 U.S. 837, 105 S.Ct. 134, 83 L.Ed.2d 74 (1984); cf. United States v. Batts, 558 F.2d 513, 516 (9th Cir.1977) (upholding the use of illegally obtained evidence to show knowledge and intent without discussing bad faith of the police officers), cert. denied, 439 U.S. 859, 99 S.Ct. 178, 58 L.Ed.2d 168 (1978).