State v. Amos

FINE, J.

(concurring). I write separately for two reasons. First, to explain my rationale for joining in the court's decision on the critical issue of whether the exclusionary rule, crafted to vindicate Fourth Amendment rights, Stone v. Powell, 428 U.S. 465, 482-483 (1976), should be expanded to shelter an escaped con*283vict. Second, the majority's discussion of Chambers v. Mississippi, 410 U.S. 284 (1973), is unwarranted.

rH

Amos' challenge to the entries of Nelson's home and the seizure of his property presents an issue of first impression in Wisconsin.1 Resolution of that issue requires an analysis of the interests the Fourth Amendment was designed to protect.

The fundamental purpose of the Fourth Amendment's prohibition against unreasonable searches and seizures, and the counterpart found in article I, section 11 of the Wisconsin Constitution, is to protect "the privacy and security of individuals against arbitrary invasions by government officials." State v. Boggess, 115 Wis. 2d 443, 448-449, 340 N.W.2d 516, 520 (1983). The exclusionary rule that bars trial use of evidence obtained in violation of the Fourth Amendment is a judicially-constructed mechanism designed to deter illegal police activity, United States v. Janis, 428 U.S. 433, 446 (1976); Linkletter v. Walker, 381 U.S. 618, 636-637 (1965), though empirical support for the rule's efficacy in that regard is problematic. Janis, 428 U.S. at 449-454. What is clear, however, is that imposition of the exclusionary rule "exacts a substantial social cost" since *284"[r]elevant and reliable evidence is kept from the trier of fact and the search for truth at trial is deflected." Rakas v. Illinois, 439 U.S. 128, 137 (1978). Indeed, since the exclusionary rule kicks in only when evidence of crime is uncovered, it "only benefits a person incriminated by illegally obtained evidence," Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U. Chi. L. Rev. 665, 736 (1970), "and often frees the guilty." Stone v. Powell, 428 U.S. at 490.2 Thus, there are — appropriately—serious "misgivings as to the benefit of enlarging the class of persons who may invoke [the exclusionary] rule." Rakas, 439 U.S. at 138. Cf. State v. Rush, 147 Wis. 2d 225, 230, 432 N.W.2d 688, 691 (Ct. App. 1988) ("Applying the exclusionary rule to sentencing would also unduly restrict a trial court's access to a broad range of evidence in determining a proper sentence."). These misgivings are legitimate considerations in our analysis of whether the rule's scope should be expanded to protect Amos. See Rakas, 439 U.S. at 138.

It is now settled that " 'Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted,' " Id. at 133-134 (quoting Alderman v. United States, 394 U.S. 165, 174 [1969]), because "[c]onferring standing to raise vicarious Fourth Amendment claims would necessarily mean a more widespread invocation of the exclusionary rule during criminal trials," Id. at 137. Thus, Amos may not assert Nelson's interest in the "privacy and security," Boggess, 115 Wis. 2d at 448, 340 N.W.2d at 520, of her home. Rather, the critical question here is whether the *285police entry into Nelson's home "has infringed an interest of [Amos that] the Fourth Amendment was designed to protect," see Rakas, 439 U.S. at 140, that is, whether the entry "invaded his legitimate expectation of privacy," see United States v. Payner, 447 U.S. 727, 731 (1980) (emphasis in original).3

In order for an expectation of privacy to be "legitimate," there must be "more than a subjective expectation of not being discovered." Rakas, 439 U.S. at 143 n. 12. A person who is on the searched premises unlawfully has no "legitimate" expectation of privacy in those premises. Id. at 143-144 n. 12 ("A burglar plying his trade in a summer cabin during the off season may have a thoroughly justified expectation of privacy, but it is not one which the law recognizes as 'legitimate.' ").

When the police entered Nelson's home, Amos was a fugitive from justice; he was not lawfully in Nelson's home. See United States v. Roy, 734 F.2d 108, 110-111 (2d Cir. 1984). Indeed, he could not lawfully be any place but the institution from which he had escaped. Id. at 111. He had no "legitimate expectation of privacy" in Nelson's home, see Payner, 447 U.S. at 731, and thus the exclusionary rule gives him no refuge, see Jones v. United States, 362 U.S. 257, 267 (1960) (The exclusionary rule may not be asserted by "those who, by virtue of their wrongful presence, cannot invoke the privacy of the premises searched."), overruled on other grounds, United States v. Salvucci, 448 U.S. 83 (1980) (rejecting the automatic standing rule in Jones). Cf. Griffin v. Wisconsin, 483 U.S. 868 (1987) (A probationer in legal custody of Department of Health and Social Services is subject to warrantless search of his home by probation *286officer pursuant to department regulations found reasonable under Fourth Amendment.). The trial court properly held that the exclusionary rule did not bar receipt of the evidence seized in Nelson's home.

HH HH

The majority's discussion of Chambers is superfluous. A Chambers analysis is appropriate only when a defendant's theory of defense is stymied by the mechanistic application of a technical rule of hearsay. See 410 U.S. at 302. Here, as the majority recognizes, majority at 276, Livingston's testimony about what Amos' cellmate told Amos was not hearsay because it was not being introduced for the truth of its assertion. See Rule 908.01(3), Stats. Chambers is not material to our decision.

Although arguing that his arrest was unlawful, Amos does not contend that the trial court lacked personal jurisdiction over him. See State v. Smith, 131 Wis. 2d 220, 236, 388 N.W.2d 601, 608 (1986) ("A defendant cannot claim immunity from prosecution 'simply because his appearance in court was precipitated by an unlawful arrest,' nor does an illegal arrest serve as a defense to a valid conviction." [quoting United States v. Crews, 445 U.S. 463, 474 (1980)]). Rather, he contends that the fruits of the entries should be suppressed. See Smith, 131 Wis. 2d at 240-241, 388 N.W.2d at 610.

Innocent persons subjected to illegal searches gain no succor from the exclusionary rule irrespective of how flagrant and outrageous the Fourth Amendment violation, see Oaks, 37 U. Chi. L. Rev. at 736-739; it offers them no "Reparation" for their "ruptured privacy." See Linkletter, 381 U.S. at 637.

Prior to Rakas, this analysis was a "standing" inquiry. Rakas, 439 U.S. at 140; State v. Fillyaw, 104 Wis. 2d 700, 710, 312 N.W.2d 795, 800 (1981), cert. denied, 455 U.S. 1026 (1982).