NCJ Number
94867
Journal
Journal of Criminal Law and Criminology Volume: 75 Issue: 1 Dated: (Spring 1984) Pages: 139-165
Date Published
1984
Length
27 pages
Annotation
The Supreme Court did not intend to create an attenuation exception to the exclusionary rule but only to restate the independent source exception. Moreover, the attenuation exception is inconsistent with the fourth amendment and the suppression doctrine.
Abstract
The Court has recognized two exclusionary rule exceptions that are based on the circumstances surrounding the unconstitutional discovery of the evidence. One is the independent source exception and the other is the attenuation exception, which permits the use of evidence discovered through the government's misconduct if the connection between the misconduct and the discovery of the evidence is sufficiently weak. The decision recognized as the origin of the attenuation exception is Nardone v. United States (1939). However, the attenuation exception to the exclusionary rule derives from a passage in the opinion in that case that otherwise appears only to restate the independent source exception. Justice Frankfurter asserted that attenuation language was not intended to express a technical legal doctrine or to convey a formula for adjudicating cases. It was a 'literary phrase' not to be distorted by being taken out of context. Once taken from its context, the attenuation exception has violated the personal constitutional right of defendants to the suppression of illegally obtained evidence and has undermined the deterrent purpose of the exclusionary rule. Because the attenuation exception allows the government to use evidence discovered through an illegal search or seizure, this exception undermines the suppression doctrine, which is designed to safeguard the fourth amendment right against unreasonable searches and seizures. The attenuation exception should not be sanctioned by the courts. A total of 119 footnotes are provided.