State v. Booker , 212 Ariz. 502 ( 2006 )

LANKFORD, Judge,

Concurring in Part and Dissenting in Part.

¶25 I agree with my colleagues on all issues except one. I am reluctant to part with such good company, but I believe that no exception to the exclusionary rule applies to these facts.

¶26 My disagreements with the majority are as follows:

1. The holding lacks any directly supporting authority.

2. The majority mischaracterizes the routine application of the exclusionary rule as an “expansion” of that rule.

3. The holding creates an exception to the rule never before recognized by the Supreme Court.

4. The holding rests on phrases such as “zone of primary interest” and “cognitive nexus” that lack analytical content.

5. The majority engages in an unauthorized case-by-case determination of whether the exclusionary rule applies, abandoning precedents and the “bright line” exceptions to the rule.

6. The holding undercuts the purpose of the exclusionary rule.

¶ 27 My first difficulty with the majority opinion is that it lacks any true support in prior decisions. No United States Supreme Court opinion recognizes the exception adopted by the majority.¹² And, as far as I have been able to determine, other courts have not exempted the government from the exclusionary rule on facts like those at hand. The majority cites no analogous cases.¹³ The holding fits within no recognized exception to the rule. Accordingly, the court’s holding lacks supporting authority.

¶ 28 My second difficulty is that the majority mischaracterizes the application of the exclusionary rule to this case as an “expansion” of the rule. This is a fundamental misconception. The exclusionary rule is the general rule in criminal prosecutions.¹⁴ As the Supreme Court said in Maipp v. Ohio: “We hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court.” 367 U.S. at 655, 81 S.Ct. 1684. The instances in which the rule is not applied are the exceptions.¹⁵ It does not “expand” a general rule to apply it in a ease within its scope.¹⁶ The majority creates an unprecedented exception to a rule of general application; it does not avoid an expansion of the general rule.

¶29 My third objection to the majority opinion is that its exception to the exclusionary rule is an invented one, unrecognized by other courts or by scholars. The exceptions to the exclusionary rule are well-defined and they are few in number.¹⁷ Not one of these exceptions applies to this case. As the court said in Hill, a case cited by the majority, “[T]he list of exclusionary rule ‘exceptions’ [cited by the prosecution] ... all involve contexts in which the evidence is not being affirmatively used to prove an element of an offense and thereby to obtain a conviction.” 60 F.3d at 678. The evidence against defendant Booker is being used precisely in that way and is subject to the rule.

¶ 30 My fourth concern is that the phrases relied upon by the majority are too vague to be useful. Such terms as “cognitive nexus” and “officer’s zone of primary interest” have little or no analytical content. These are vague characterizations, not rules to be applied in cases.

¶ 31 The phrase “zone of primary interest” does have a pedigree. It originated in United States v. Janis. See 428 U.S. at 458, 96 S.Ct. 3021. However, “zone of primary interest” has never been used as a guiding principle in any Supreme Court opinion. Nor has it ever been referred to as support in any Supreme Court case involving application of the exclusionary rule in a criminal prosecution. Cf. Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 367-68, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998) (declining to apply exclusionary rule in parole revocation proceeding); Lopez-Mendoza, 468 U.S. at 1050, 104 S.Ct. 3479 (exclusionary rule not applied in civil deportation hearing). Janis itself was a federal civil tax assessment proceeding. The civil/criminal distinction was pivotal: “[T]he Court has never applied [the exclusionary rule] to exclude evidence from a civil proceeding, federal or state.” Janis, 428 U.S. at 447, 96 S.Ct. 3021. As the context in which the court used the phrase in Janis reveals, “zone of primary interest” merely encapsulated the Court’s immediately preceding discussion of the utility of applying the exclusionary rule.¹⁸ The Court did not employ the phrase as a rule to be applied in dissimilar future cases. The Court did not further explain the phrase. Accordingly, I find nothing in this phrase that leads us to the result reached by the majority.¹⁹

¶32 “Cognitive nexus” has no claim to a similarly lofty origin. I find it nowhere in the Supreme Court’s opinions. Neither of the Supreme Court cases cited by the majority as explaining the reason for the cognitive nexus requirement mentions the phrase, let alone applies the concept. See supra ¶ 19.

¶ 33 Even if a connection were required, there is a close connection between the unlawful search and seizure and the current criminal case. There is a temporal connection: The search, seizure and subsequent alleged criminal conduct occurred within a short time.²⁰ There is a spatial connection:

The events took place at Defendant’s residence. There is a connection among the people involved: One of the same officers who conducted the search responded to the confrontation and, of course, both the Defendant and the victim were involved in both events. And there is a substantive connection in the evidence itself: The seized evidence was used to show motive or intent in the assault trial. Even if an “appreciable cognitive nexus” is required, it is present.²¹

¶ 34 My fifth difficulty is that the majority engages in a case-specific weighing of the costs and benefits of applying the exclusionary rule. I am unaware of any mandate from the Supreme Court for trial judges (or state appellate judges, for that matter) to engage in a case-by-case assessment of the wisdom of applying the rule. I find no authority for judges to decline to apply the rule in any case in which they think exclusion of evidence would be unwise or undesirable. In truth, we have no more authority to admit illegally seized physical evidence than we have the right to admit into evidence unlawfully coerced confessions. See Mapp, 367 U.S. at 656-57, 81 S.Ct. 1684. The exclusionary rule is no “rule” at all if judges may refuse to apply it whenever they wish.

¶ 35 My final area of disagreement lies in the majority’s assertions that the deterrent effect of applying the rule would be minimal, and the sacrifice to truth-seeking too great. These are no more than bare conclusions.

¶ 36 In reality, there is no less deterrence in this case than in any other. The exclusionary rule would deprive the prosecution of any evidentiary benefit of illegally obtained evidence, as the rule does in any other case. I cannot agree that exclusion results in no deterrence because the State’s use of the evidence is “indirect.” Supra at ¶ 23. The majority does not explain how the deterrent effect of exclusion is diminished. And indeed it is not diminished. This differs little from a case in which officers illegally search for evidence of one crime, and unlawfully seize evidence of another. I cannot conceive of why illegal behavior should be rewarded merely because more or different evidence was obtained than that sought.

¶ 37 We should take great care not to encourage violation of our constitutional guarantees. “[T]he State, by admitting evidence unlawfully seized, serves to encourage disobedience to the Federal Constitution which it is bound to uphold.” Mapp, 367 U.S. at 657, 81 S.Ct. 1684. What must be considered is the risk that law enforcement, reading opinions such as this, will believe that the courts will allow illegal evidence in other cases. The majority’s approach is so broad, so free from the fetters of any recognized exception to the exclusionary rule, that such a belief would not be unfounded. The impression that one can “get away with it” undermines deterrence and invites illegality.

¶ 38 It is surely unwise to adopt such a vague exception. Although the Supreme Court has adopted narrow and specific exceptions to the rule, “[t]he Court has, to be sure, not seriously questioned ... ‘the continued application of the rule to suppress evidence from the [prosecution’s] case where a Fourth Amendment violation has been substantial and deliberate.’ ” Leon, 468 U.S. at 908-09, 104 S.Ct. 3405. Exceptions to the rule are crafted only with great caution, as the Court explained: “[W]e must focus on systemic effects of proposed exceptions to ensure that individual liberty from arbitrary or oppressive police conduct does not succumb to the inexorable pressure to introduce all incriminating evidence, no matter how obtained, in each and every criminal case.” James, 493 U.S. at 319-20, 110 S.Ct. 648.

¶ 39 Nor is this a ease in which exclusion would inflict severe damage on the truth-seeking function of the trial. The evidence was used to prove motive or intent, but it was not essential. The intent or motive stemmed from animosity between defendant and putative victim, and that could have been established by testimony that the victim had called police to defendant’s residence. Admitting the fruits of the search that followed the call is unnecessary.²²

¶ 40 Nor can I agree with the suggestion that the exclusionary rule need not be applied because victims of illegal searches can sue for civil damages. Supra at n. 11. Notably, no authority is cited to support this proposition. On the other hand, the Supreme Court has clearly indicated that sanctions other than exclusion do not suffice. The exclusionary rule is able “to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it.” James, 493 U.S. at 319, 110 S.Ct. 648 (quoting Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960)). “[Experience has taught that [the exclusionary rule] is the only effective deterrent to police misconduct in the criminal context, and that without it the constitutional guarantee against unreasonable searches and seizures would be a mere ‘form of words.’ ” Terry, 392 U.S. at 12, 88 S.Ct. 1868 (quoting Mapp, 367 U.S. at 655, 81 S.Ct. 1684).

¶ 41 For these reasons, I cannot agree with the holding or reasoning of my colleagues. The exclusionary rule is after all a rule, and state judges are bound to follow it. See Evans, 514 U.S. at 8-9, 115 S.Ct. 1185 (state courts “are not free from the final authority of this Court”). Whatever disagreements we might have with the exclusionary rule, we should uphold it just as we must with all other rules grounded in federal constitutional law.

¶ 42 Accordingly, I must dissent.

12 . The Court has adopted a few exceptions. For example, it held that because the exclusionary rule should not shield a defendant from committing perjury, illegally seized evidence can be admitted for impeachment. See Walder v. United States, 347 U.S. 62, 65, 74 S.Ct. 354, 98 L.Ed. 503 (1954). The Court also held that the exclusionary rule does not apply to an unrelated federal civil proceeding when the evidence was seized in a state criminal investigation. Janis, 428 U.S. at 459-60, 96 S.Ct. 3021. But I have found no case in which the Court adopted any exception that resembles the one advocated by the majority in this case.

13 . For example, the majority relies on United States v. Turk and United States v. Lopez-Martinez, but these were cases involving the perjury exception already recognized by the United States Supreme Court. See 526 F.2d at 667, 725 F.2d at 476.

The majority cites but misses the thrust of United States v. Hill. The court rejected the trial court’s theory that illegally seized evidence could be admitted, as it was against defendant Booker, as evidence of motive or intent. Instead, it said: "We hold, to the contrary, that the exclusionary rule does apply where, as here, the alleged unlawfully obtained evidence is being used to prove an essential element of a charged offense — at least where there is some nexus between the initial search and seizure and the subsequent charged offense.” 60 F.3d at 677 (emphasis added). In fact, Hill criticized the position of the prosecution, similar to the majority's opinion in this case, that evidence is to be excluded only if used in the prosecution for the conduct that was the subject of the unlawful search. "This [position],” the court said, "ignores the fact that the [Supreme] Court has never swayed from the basic proposition that convictions may not be obtained with evidence from illegal searches and seizures. '[T]he need for deterrence and hence the rationale for excluding the evidence are strongest,' the Court has consistently asserted, 'where the Government's unlawful conduct would result in imposition of a criminal sanction on the victim of the search.' " 60 F.3d at 678 (quoting Calandra, 414 U.S. at 348, 94 S.Ct. 613).

Nor is the majority aided much by Taylor v. State. The Nevada Supreme Court held that the fruits of a search following an arrest for one offense could be used as evidence in the prosecution of an unrelated crime committed two months later. But Taylor rests confessedly on its own "rather unique circumstances.” 547 P.2d at 676. Moreover, unlike Taylor, there is a close connection between the original search and seizure and the offense with which defendant Booker is charged: According to the prosecution, the search and seizure were the motivation for the later assault offense and the evidence relating to the earlier events proves the intent element of the assault charge. The search and the offense were also mere hours, not months, apart, and both events occurred at the same location.

14 . "The paradigmatic case in which the exclusionary rule is applied is when the prosecutor seeks to use evidence illegally obtained by law enforcement officials in his case-in-chief in a criminal trial.” INS v. Lopez-Mendoza, 468 U.S. 1032, 1052, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984) (White, J., dissenting). The present case falls squarely within the paradigm.

15 . See James v. Illinois, 493 U.S. 307, 311, 110 S.Ct. 648, 107 L.Ed.2d 676 (1990) ("This Court has carved out exceptions to the exclusionary rule....”); Wayne R. LaFave et al., Criminal Procedure § 9.6(a), at 395 (2d ed. 1999) ("There exists, however, a few exceptions to [the exclusionary rule]____”).

16 . See James, 493 U.S. at 313-18, 110 S.Ct. 648 (repeatedly characterizing Illinois Supreme Court's ruling as an unwarranted "expansion” of the impeachment exception to the exclusionary rule). An extension of the exclusionary rule would entail lengthening its reach into territory in which it had not been applied before. The Supreme Court has referred to an "extension” of the exclusionary rule in the context of extending this rule of criminal procedure to civil cases. Janis, 428 U.S. at 458, 96 S.Ct. 3021. Of course, this appeal involves application of the rule in a criminal case, which is not an extension or expansion.

17 . See Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 11.6, at 397 (4th ed.2004). The exceptions occur in "special circumstances.” Id. See also Heather A. Jackson, Arizona v. Evans: Expanding Exclusionary Rule Exceptions and Contracting Fourth Amendment Protection, 86 J.Crim. L. & Criminology 1201, 1204 (1996) (listing exceptions).

18 . The Court wrote:

[T]he deterrent effect of the exclusion of relevant evidence is highly attenuated when the 'punishment' imposed upon the offending criminal enforcement officer is the removal of that evidence from a civil suit by or against a different sovereign____ This attenuation ... creates a situation in which the imposition of the exclusionary rule is unlikely to provide significant, much less substantial, additional deterrence. It falls outside the offending officer's zone of primary interest. 428 U.S. at 458, 96 S.Ct. 3021.

19 . The majority's discussion of "zone of interest” also suggests that illegal evidence is admissible if no bad faith, collusion or improper motivation by police is involved. Supra ¶ 22. I am unaware of any Supreme Court or Arizona decisions that make the subjective motivation the touchstone of admissibility. On the contrary, the Court has repeatedly held that an officer’s subjective motivation does not render an objectively justified search unlawful. See, e.g., Whren v. United States, 517 U.S. 806, 812, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978) (citing United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973)). Not even the “good faith” exception to the exclusionary rule turns on the subjective good faith of the officers; it is an objective standard. Leon, 468 U.S. at 919 n. 20, 104 S.Ct. 3405.

20 . The majority argues that a temporal connection is "not relevant." Supra at n. 10. Of course, such assertions make it less clear what is required under the majority's proposed “cognitive nexus” test. Just as importantly, its assertion is belied by the veiy cases on which the majority relies. See Hill, 60 F.3d at 680 (listing time period of "just a few months” as one of factors); Lopez-Martinez, 725 F.2d at 476 (contrasting 1974 date of obtaining evidence and current proceedings in the 1980’s); Knight, 185 F.Supp.2d at 69 (noting that arrests were one year apart); Beuer, 92 Cal.Rptr.2d at 576 (discussing incidents in two separate calendar years); Taylor, 547 P.2d at 676 (noting later crime was committed two months after search). The only case cited by the majority that did not mention the time factor was United States v. Turk, but that case is completely off-point. In Turk, the court applied Calandra to hold that "evidence obtained in an illegal search may properly be admitted in the perjury trial of a victim of the search." 526 F.2d at 667.

The majority also argues that I "equate[] police misconduct in seizing contraband or evidence with prosecutorial decisions ... to use the seized evidence to help prove an unrelated crime.” Supra at n. 7. Underlying this assertion is the notion that the prosecution should be regarded separately from police, and that an "innocent" prosecutor not be penalized for unlawful police conduct. The majority cites no authority for this proposition. If it were the law, then evidence would be excluded only when the prosecutor was a participant in the illegal search. This is simply not so: Prosecution and police both are arms of the state, and evidence is routinely excluded from the state’s case without evidence of prosecutorial participation in illegality. See, e.g., State v. Meza, 203 Ariz. 50, 59, ¶ 41, 50 P.3d 407, 416 (App.2002) ("a law enforcement agency participating in a criminal investigation operates as an arm of the prosecutor in matters of discovery").

21 . The evidence was not admitted in a prosecution for possession of drug paraphernalia. But that makes no difference to either application of the exclusionary rule or to the purposes served by that rule. A hypothetical illustrates this point. If police unlawfully seize forged checks written on a stolen checkbook, the evidence is not admissible merely because forgery is not the offense charged, but instead the prosecutor uses it to prove some other offense, such as theft of the checkbook (see A.R.S. § 13-1802 (Supp.2005)), fraud (see A.R.S. § 13-2310 (2001)), or participating in a criminal syndicate (see A.R.S. § 13-2308 (2001)). Similarly, when police illegally search for evidence of one crime, but unlawfully seize evidence of another offense, there is no exception to the rule excluding the evidence in the prosecution of the second offense. In responding to part of this hypothetical, the majority misstates my position when it suggests that I argue that "unlawfully obtained evidence is inadmissible regardless of its use in prosecutions.” Supra at n. 8. That is not so: As I have indicated elsewhere in this opinion, evidence is admissible when a recognized exception to the exclusionary rule applies.

22 . Indeed, the asserted "cost” of excluding evidence is illusory. If police act lawfully, then they do not obtain evidence illegally. If they do not obtain it, obviously they do not have it for use at trial. The exclusionary rule accomplishes no more than this: It reflects the situation as it would be with law-abiding police behavior. Ex-elusion of illegal evidence thus imposes no added impediment to the truth-seeking function. See Potter Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search-and-Seizure Cases, 83 Colum. L.Rev. 1365, 1393-94 (1983).