The hand-off procedure or the new silver platter: How today's police are serving up potentially tainted evidence without even revealing the search that produced it to defendants or to courts

Stanford Law Review

Volumn 62, Issue 3, 2010, Pages 863-904

  Block, Micah G ^a  

^a STANFORD LAW SCHOOL   (United States)

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EID: 77950387673     PISSN: 00389765     EISSN: None     Source Type: Journal    
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References (120)

1. See infra Part I.B.
2. See, e.g., Whitaker v. Garcetti, 291 F. Supp. 2d 1132, 1139 (C.D. Cal. 2003) ("Defendants speak freely and openly about the 'hand off' procedure's express purpose of evading the revelation of the wiretap's existence. That they do not so much as hesitate in discussing its logistics, even while being cross-examined by defense counsel in criminal proceedings, demonstrates their ultimate confidence in the legality and propriety of the procedure." (footnote omitted)), aff'd in part, dismissed in part, vacated in part, and rev'd and remanded in part, 486 F.3d 572, 582-83 (9th Cir. 2007).
3. See KEN WALLENTINE, STREET LEGAL: A GUIDE TO PRE-TRIAL CRIMINAL PROCEDURE FOR POLICE, PROSECUTORS, AND DEFENDERS 61 (2007).
4. Wiretaps are governed not only by the Fourth Amendment, see, e.g., Katz v. United States, 389 U.S. 347 (1967), but also by Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2522 (2006). Title III imposes requirements in addition to the Fourth Amendment's requirement of probable cause, such as requiring officers applying for a wiretap order to provide information about the viability of other, less intrusive procedures. 18 U.S.C. § 2518(1)(c). See generally 18 U.S.C. § 2518.
5. A pen register is an electronic device that records "dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted" but does not record the content of the communications. 18 U.S.C. § 3127(3) (2006). Because they are not Fourth Amendment searches, see Smith v. Maryland, 442 U.S. 735, 744 (1979) (analyzing pen registers under a pre-Internet version of the statute that defined the term with regard to phones only), pen registers are easier to obtain than wiretaps. Under Title III, they merely require a court order which a judge "shall" issue "if the court finds that the attorney for the Government has certified to the court that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation." 18 U.S.C. § 3123(a)(1) (2006).
6. For an illuminating and concise discussion of the meaning of "privacy" as it relates to law and government surveillance, see Richard A. Posner, Privacy, Surveillance, and Law, 75 U. CHI. L. REV. 245, 245-46, 249 (2008) (describing "'[p]rivacy'" to include, inter alia, an "instrumental interest" in "concealment of personal information" from the government or others based on "the desire that such information not be used against oneself").
7. See Press Release, Drug Enforcement Admin., DEA Dismantles International Ecstasy Trafficking Groups (Nov. 17, 2005), http://www.justice.gov/dea/pubs/pressrel/pr111705p.html [hereinafter Press Release DEA Dismantles International Ecstasy Trafficing Groups]; Press Release, Drug Enforcement Admin., Operation Sweet Tooth Nets Arrests From Bay Area Ecstasy Investigation (Nov. 18, 2005), http://149.101.1.32/dea/pubs/states/newsrel/sanfran111805b.html
8. Press Release, DEA Dismantles International Ecstasy Trafficking Groups, supra note 7.
9. Government's Reply to Defendants' Motion to Suppress Evidence at 2, United States v. Man Nei Lui, No. CR-05-00723-JW (N.D. Cal. Feb. 13, 2007), 2007 WL 2718824 [hereinafter Feb. 13 Motion].
10. See supra note 7. A "takedown" marks the end of a covert investigation and often involves near simultaneous execution of a multitude of search and arrest warrants.
11. Feb. 13 Motion, supra note 9, at 8.
12. Id. at 8-9. The government has argued that where the hand-off procedure is in the form of a wall stop, in which subsequent investigators conduct a traffic stop based on an actual traffic violation, the existence of probable cause for the traffic stop renders the stop objectively reasonable, regardless of the nature or existence of any prior investigation. See, e.g., Government's Opposition to Defendants' Motion to Dismiss the Indictment for Government Misconduct at 13, United States v. Man Nei Lui, No. CR-05-00723-JW (N.D. Cal. June 14, 2007), 2007 WL 4566392 [hereinafter June 14 Motion]. See generally Whren v. United States, 517 U.S. 806 (1996). But the holding in Whren, that police who otherwise lack probable cause may rely on a pretextual traffic stop to investigate suspected criminal activity, does not necessarily mean that police whose suspicion derives from prior police illegality can simply cleanse the taint of that illegality by conducting a pretextual traffic stop. But see United States v. Pedraza-Bucio, No. 2:08 CR 698(TC), 2009 WL 1110332, at *3 (D. Utah Apr. 23, 2009).
13. Feb. 13 Motion, supra note 9, at 9.
14. See June 14 Motion, supra note 12, at 2-3.
15. See Notice of Motion and Defendants' Motion to Dismiss the Indictment for Government Misconduct at 2-3, United States v. Man Nei Lui, No. CR-05-00723-JW (N.D. Cal. May 29, 2007), 2007 WL 4566415 [hereinafter May 29 Motion].
16. Indeed, the defendants rejected a plea bargain that was offered to them by the San Francisco District Attorney's Office before the state charges were dismissed. Id. at 5-6.
17. The wall stop appears in a guide to pretrial criminal procedure for police published by the American Bar Association in 2008. WALLENTINE, supra note 3. In this book by the Chief of Law Enforcement for the Utah Attorney General, id. at xv, the author gives no indication of its frequency, but it is common enough for him to discuss it in a generalized way, noting for example that "many wall stops are impromptu." Id. at 62.
18. The wall-stop procedure is part of the training curriculum for narcotics investigation offered by the California Narcotics Officers Association. The course listing is available at Cal. Comm'n on Peace Officer Standards & Training, Course Catalog, http://www.post.ca.gov/publications/course_catalog/3832.asp (last visited Nov. 23, 2009). Although I have been unable to view the relevant content of the training material, the online course catalog explains that a course called "Narcotics Inv.-Patrol" is "[a] comprehensive course that will provide patrol personnel with information on how to combat the drug abuse problem while assigned to patrol. Topics will include drug abuse recognition, use of informants, wall stop procedures, cannabis clubs, report writing and courtroom testimony." Id. (emphasis added); see also Search Warrant and Affidavit at 7, United States v. Dossman, No. 05-CR-00270 (E.D. Cal. Nov. 3, 2005), 2005 WL 6041304 ("In November 2003, I attended the California Narcotic Officers Association Conference that included courses, but was not limited to[,] Major Drug Trafficking investigations, Hotel / Motel Drug Interdiction, Cool Stops / Wall Stops, and Methamphetamine Clandestine Laboratory Investigative Techniques." (emphasis added)).
19. I discovered a total of twenty-three discrete cases using these terms in one or more filings with the meaning I give them here. To cast my net as broadly as possible, I searched for any of the phrases "wall stop" and "wall off" (and their variants as a single word, hyphenated, etc.), and for the word "hand off" (and its variants) in the same sentence as "procedure" "practice" or "traffic stop." For criminal filings, I searched Westlaw's "CRFILING-ALL" and "FED-FILING-ALL" databases, hoping to capture both motions to suppress in state and federal court and potentially also § 1983 actions in federal civil litigation. I developed these search terms by reading filings and decisions in Whitaker v. Garcetti and United States v. Man Nei Lui, both of which I knew to discuss the procedure based on personal experience, before I began my research. These searches may be underinclusive because there is no consensus terminology for referring to the hand-off procedure, but other researchers have found a similar dearth of results. See Whitaker v. Garcetti, 291 F. Supp. 2d 1132, 1145 (C.D. Cal. 2003) ("Remarkably, the issue of whether such a procedure is constitutionally permissible seems to have never been decided."); id. At 1146 (noting that a legal challenge to the hand-off procedure occupied a "precedently vacuous realm").
20. Using the search terms described above in Westlaw's "ALLCASES" database, I found the procedure mentioned in judicial decisions in only five cases: (1) Whitaker v. Garcetti, 291 F. Supp. 2d 1132 (involving a hand off to a different local unit to protect a local wiretap, challenged under § 1983 and remanded on technical grounds without directly addressing the propriety of the procedure); (2) United States v. Singh, 363 F.3d 347, 353-54 n.8, 358 (4th Cir. 2004) (reversing district court's suppression of evidence from a wall stop conducted to protect the identify of a confidential informant); (3) United States v. Oung, 490 F. Supp. 2d 21 (D. Mass. 2007) (involving a wall stop by local police to protect a federal investigation that was not challenged); (4) United States v. Pedraza-Bucio, No. 2:08 CR 698(TC), 2009 WL 1110332, at *1, *3 (D. Utah Apr. 23, 2009) (denying a motion to suppress evidence gleaned from a wall stop); (5) United States v. Santana, No. 2:03-CR-186 W, 2003 WL 23356402, at *5 (D. Utah Nov. 19, 2003) (involving a wall stop to protect a "task force" investigation that was not challenged).
21. This is not the sum of the filings cases and decision cases, because I have avoided double counting discrete cases in the total, and of course the term sometimes appears in both filings and decisions related to the same discrete case.
22. Although I searched both state and federal courts, I was able to find references to the procedure only in federal cases and filings. The eleven jurisdictions are the Northern, Eastern, Central, and Southern Districts of California; the Northern and Southern Districts of Georgia; the Northern District of Illinois; the District of Massachusetts, the Middle District of North Carolina; the District of Oregon; and the District of Utah. The procedure also appears in cases from two Circuit Courts of Appeals: the Fourth Circuit (in a case arising out of the Middle District of North Carolina); and the Ninth Circuit (in a case arising out of the Central District of California).
23. United States's Opposition to Defendant's Motion to Suppress at 12 n.2, United States v. Pineda, No. 1:06-CR-00350-WSD/LTW (N.D. Ga. July 26, 2007), 2007 WL 4860940 (emphasis added).
24. Response of the United States to Juarez's Brief in Support of Defendant's Request to Preclude Government from Relying on Information Gathered from Wiretaps and DEA Surveillance to Justify the Detention of Mr. Lucero-Espino and the Search of His Vehicle at 3 n.1, United States v. Juarez-Mendoza, No. 03CR0210BTM (S.D. Cal. June 18, 2003), 2003 WL 25630357.
25. See Whitaker, 291 F. Supp. 2d at 1139 n.14.
26. Press Release, Statement of District Attorney Gil Garcetti (June 1, 1998), http://pd.co.la.ca.us/da.htm. The LADA asserted in the same press release that "[i]n every one of these cases, the wiretap surveillance was judicially authorized and monitored. Additionally, in cases in which the wiretap surveillance revealed exculpatory information, this information was provided to the defendants." Id.; see also D.A.'s Office Admits Secret Wiretapping, L.A. TIMES, June 2, 1998, at B3 ("After insisting for months that its actions were appropriate and legal, the district attorney's office Monday announced that it would immediately notify dozens of criminal defendants-some already serving prison terms-that their prosecutions resulted from previously undisclosed wiretaps.").
27. See supra notes 19-20. One purpose that this Note may serve is to bring conformity to the terminology, which would enable better empirical data to be gathered in the future. With regard to how long the procedure has been in use, there is some indication that an early form of hand off was in use as early as 1956. The 1957 Supreme Court case of Benanti v. United States addressed a motion to suppress evidence gathered by state officials in 1956 in violation of the federal wiretap law and then introduced by federal prosecutors in a federal prosecution. 355 U.S. 96 (1957). The Second Circuit's opinion in the case explained that "[i]t was not until the cross-examination of one of the police officers at the trial that the [federal] prosecutor or any of his assistants had any knowledge or suspicion of the fact that there had been a wiretap." 244 F.2d 389, 390 (2d Cir. 1957). Benanti does not necessarily suggest a hand off in the modern form, conducted with the prospective purpose of walling off part of an investigation from public or judicial scrutiny, but it is interesting as an early example of keeping part of a covert investigation hidden from the court and the defendant (and, in this case, the prosecutor), even while using the evidence that it produced, presumably to avoid scrutiny of an illegal or potentially illegal action. More recently, the district court judge in Whitaker noted that the procedure "appear[ed] to have first been used by the [Los Angeles Police Department] and the office of the [Los Angeles District Attorney] in the mid-1980's," 291 F. Supp. 2d at 1138, but gave no indication of the sources he relied on for this information.
28. The term was coined by Justice Frankfurter in Lustig v. United States, 338 U.S. 74, 78-79 (1949) ("The crux of that doctrine is that a search is a search by a federal official if he had a hand in it; it is not a search by a federal official if evidence secured by state authorities is turned over to the federal authorities on a silver platter.").
29. The silver platter doctrine reaches as far back as the announcement of the exclusionary rule in Weeks v. United States, 232 U.S. 383 (1914). While excluding evidence obtained when federal officials violated the Fourth Amendment, the Weeks Court admitted evidence unlawfully seized by local police officers, concluding that "the Fourth Amendment is not directed to individual misconduct of such officials. Its limitations reach the Federal Government and its agencies." Id. at 398; see also Elkins v. United States, 364 U.S. 206, 210 (1960) (describing Weeks as the source of the silver platter doctrine). The silver platter doctrine was formally announced by the Supreme Court in Byars v. United States, 273 U.S. 28, 33-34 (1927) (excluding unlawfully obtained evidence where state police acted solely for the purpose of aiding in the enforcement of federal law, but leaving in place "the right of the federal government to avail itself of evidence improperly seized by state officers operating entirely upon their own account") and Gambino v. United States, 275 U.S. 310, 314, 317 (1927) (same).
30. 364 U.S. 206 (1960).
31. 338 U.S. 25, 27-28 (1949).
32. Elkins, 364 U.S. at 213.
33. Id. at 217-18 (quoting Brinegar v. United States, 338 U.S. 160, 181 (1949) (Jackson, J., dissenting)).
34. Moreover, the hand off introduces a selection bias to the subset of searches courts actually see by enabling police to unilaterally choose which searches to conceal, at least when the pre-hand-off search is covert.
35. See Elkins, 364 U.S. at 221.
36. The silver platter doctrine's federalism problems do not accompany the hand off because the hand off does not necessarily make it possible to pursue prosecutions in the courts of one sovereign that would be impermissible in the courts of another sovereign.
37. In recent exclusionary rule cases the Court has increasingly relied on the power of internal police discipline to deter misconduct. See, e.g., Hudson v. Michigan, 547 U.S. 586, 598-99 (2006). The hand off does not necessarily undermine this deterrent except that, to the extent that it is actually condoned by courts, it signals to internal reviewers that no inquiry into the legality or propriety of pre-hand-off searches or concealment decisions is necessary.
38. For an illuminating discussion of the fine line between exemplary vigorous law enforcement and overstepping constitutional bounds, see William J. Stuntz, The Virtues and Vices of the Exclusionary Rule, 20 HARV. J.L. & PUB. POL'Y 443, 444-45 (1997).
39. See, e.g., Center v. United States, 267 U.S. 575 (1925) (per curiam) (admitting evidence seized by state officials over Fourth Amendment challenge in federal court because there was no federal participation); cf. Feldman v. United States, 322 U.S. 487, 492-93 (1944) (admitting evidence elicited in a state proceeding under state immunity in a federal prosecution over Fifth Amendment challenge because there was no federal participation).
40. Elkins, 364 U.S. at 208 n.2 (adverting to the mass of commentary and scholarship condemning the doctrine while deciding to overturn it).
41. In Whitaker, the hand-off occurred between one unit of the Los Angeles Police Department (LAPD) and another, in order to keep an LAPD wiretap secret from the defendants. 291 F. Supp. 2d 1132, 1138 (C.D. Cal. 2003); see infra Part II.B.
42. See, e.g., WALLENTINE, supra note 3.
43. See infra Part III.B.2.
44. See, e.g., Whitaker, 291 F. Supp. 2d at 1152 n.41 ("Although the receiving unit is deliberately not told that the source of the information is a wiretap (in order to allow the members of the receiving unit to testify at trail [sic] to their investigation without referencing the wiretap and without falsely testifying), cross-examination of certain Defendants reveals that a 'wink-nod' communication often exists as the 'hand off' occurs, allowing the receiving unit to draw the obvious inference that the specific evidence was acquired through a wiretap."); Government's Preliminary Response to Defendant's Discovery Motions and Motion to Suppress at 1, United States v. Vereen, No. CR406-09 (S.D. Ga. Apr. 7, 2006), 2006 WL 5050235 ("In addition to the facts set forth in the report, the government believes that the trooper had received a BOLO (be on the lookout) for defendant's vehicle based upon a report that it was engaged in drug trafficking, and was also provided the probable location of the secret compartment in which the drugs were located. This information came from a DEA wiretap case in Florida which revealed the intended shipment. However, due to security concerns regarding the (then) ongoing Florida investigation, the trooper was instructed to 'wall off' the case, that is, if the vehicle was spotted, it was not to be stopped unless independent probable cause, i.e., a traffic violation, was developed." (emphasis added)). Even where care is taken to provide only the minimum information, see for example, WALLENTINE, supra note 3, some information sharing is implicit and unavoidable-if a local officer is contacted by an agent of the Drug Enforcement Administration to conduct a wall stop, she is highly likely to understand that she is likely to find drugs in the car if she searches it, regardless of whether the DEA agent mentions the drugs or not.
45. The differences between transferring evidence on a silver platter and transferring a tip in a hand-off procedure (that is intended to lead to evidence) cannot guarantee the independence of the post-hand-off investigation so as to avoid any taint from the initial investigation. Such differences are not relevant to the independent source or inevitable discovery doctrines, neither of which depends on how much information is transferred. See infra Part III.B.2.b-c. And handing off less information may serve to attenuate the subsequent investigation from the initial one to some degree, but it is nonetheless difficult to argue that every hand off is sufficiently attenuated to purge the taint of an initial investigation that may have been unlawful. Id.
46. 291 F. Supp. 2d 1132.
47. 291 F. Supp. 2d 1136.
48. 291 F. Supp. 2d. at 1137 (omission in original).
49. 291 F. Supp. 2d. at 1136-37.
50. 291 F. Supp. 2d. at 1137, 1143 n.22
51. Id. at 1138; Whitaker v. Garcetti, 486 F.3d 572, 577 (9th Cir. 2007).
52. Whitaker, 291 F. Supp. 2d at 1146-47.
53. 18 U.S.C. § 2518(8) (2006) (providing the federal wiretap notice requirement)
54. FED. R. CRIM. P. 41(f)(1)(C) (providing the search warrant receipt).
55. It is well settled that a recklessly or intentionally false or misleading affidavit offered in support of a search warrant violates the Fourth Amendment, and entitles the subject of the search to suppress evidence derived from it. See, e.g., United States v. Leon, 468 U.S. 897, 923 (1984)
56. Franks v. Delaware, 438 U.S. 154, 155-56 (1978).
57. 291 F. Supp. 2d at 1142-43.
58. Horton v. California, 496 U.S. 128, 141-42 (1990).
59. See id. ("[T]he seizure of an object in plain view does not involve an intrusion on privacy. If the interest in privacy has been invaded, the violation must have occurred before the object came into plain view and there is no need for an inadvertence limitation on seizures to condemn it.").
60. Notwithstanding the verdict in Whitaker, it seems unlikely that a court would walk down this path. For one thing, it is hard to imagine the question being squarely presented, and for another, this would seem to require an analysis of the subjective motivations of the investigators-something the Supreme Court has clearly disfavored in Fourth Amendment cases. See, e.g., Leon, 468 U.S. at 922 n.23.
61. In addition, the subject of a pre-hand-off search who eventually becomes a criminal defendant will have standing to challenge that search in some but not all hand-off cases. As a general matter, a hand-off defendant's right to challenge evidence derived from an illegality in the prior search depends on whether that defendant had a Fourth Amendment interest at stake in the prior search. See, e.g., Rakas v. Illinois, 439 U.S. 128, 143 (1978) ("[The] capacity to claim protection of the Fourth Amendment depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place." (citing Katz v. United States, 389 U.S. 347, 353 (1967))).
62. Whitaker v. Garcetti, 291 F. Supp. 2d 1132, 1148 (C.D. Cal. 2003).
63. Whitaker v. Garcetti. (citing Franks v. Delaware, 438 U.S. 154, 171 (1978)).
64. 438 U.S. at 171-72.
65. U.S.CONST. amend. IV.
66. 438 U.S. at 168.
67. 291 F. Supp. 2d at 1148.
68. Although any disclosure obligation, including the ones that I propose in Part IV, will face line-drawing problems, those problems are less acute if the obligation is not constitutionally required. A legislature has wide latitude to impose (and adjust) appropriate common-sense constraints when crafting a policy-based solution to a practical problem. By contrast, if a court concludes that a right is implied by the Constitution, the bounds of the right should also be reasonably derived from the same source.
69. One might argue that Brady v. Maryland reads a blanket disclosure obligation of at least a superficially similar kind into the Due Process Clauses of the Fifth and Fourteenth Amendments in the criminal law context by requiring the government to disclose any exculpatory information in its possession to a criminal defendant, but that rule rests on concerns that are special to the criminal context, namely the value judgment that we ought to go to extraordinary lengths to avoid convicting the innocent. See Brady v. Maryland, 373 U.S. 83, 87 (1963) ("Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly."); see also infra Part III.B.4 (discussing due process as a possible source for a disclosure obligation). Those concerns do not apply to questions about Fourth Amendment violations or to constitutional torts generally, to which guilt or innocence is immaterial. Even though the concealment question generally arises in a criminal context, during a post-handoff prosecution, at its heart it involves the possibility of a constitutional tort. Because the legality of the pre-hand-off search has nothing to do with the guilt or innocence of the posthand- off defendant, why should a disclosure right be triggered by the Constitution when the defendant is prosecuted for a crime? And if Whitaker's constitutional disclosure right is not triggered by the criminal prosecution, then how is it different from a disclosure obligation in the context of any other constitutional tort, or any tort at all for that matter?
70. Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 362 (1998).
71. Nardone v. United States, 308 U.S. 338, 341 (1939).
72. Wong Sun v. United States, 371 U.S. 471, 488 (1963).
73. See, e.g., United States v. Johnson, 383 F.3d 538, 544 (7th Cir. 2004).
74. 371 U.S. at 491.
75. Feb. 13 Motion, supra note 9, at 7-8 ("Agent Robinson therefore developed the strategy that law enforcement officers would follow Tao after it was believed that Tao had received cocaine from Eric Lei and he would request that a marked police car from a local police department conduct a pretextual stop on Tao's vehicle, identify its occupants, and search the vehicle for the cocaine that agents would then believe would be present inside the vehicle." (emphasis added)).
76. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920).
77. See, e.g., WALLENTINE, supra note 3.
78. 487 U.S. 533 (1988).
79. 487 U.S. at 542 (emphasis added).
80. 467 U.S. 431 (1984).
81. Murray, 487 U.S. at 539 ("We held [in Nix], however, that [otherwise tainted] evidence. was nonetheless admissible because a search had been under way which would have discovered the [evidence], had it not been called off because of the discovery produced by the unlawfully obtained statements."); Nix, 467 U.S. at 444.
82. It is possible to imagine a scenario in which the hand off turned out to be unnecessary because the subsequent investigators, or some other law enforcement unit, knew about the suspected criminal activity through means independent of the initial investigation. But it seems safe to assume that in most cases where police choose to employ the hand off it is not superfluous in this way.
83. See Pub. L. No. 90-351, tit. III, 82 Stat. 197, 211-25 (codified as amended at 18 U.S.C. §§ 2510-2519 (2006)).
84. 18 U.S.C. § 2511.
85. 18 U.S.C. § 2516.
86. 18 U.S.C. § 2517(3).
87. 18 U.S.C. § 2517(1).
88. 18 U.S.C. § 2517.
89. 18 U.S.C. § 2517(5) reads in its entirety: When an investigative or law enforcement officer, while engaged in intercepting wire, oral, or electronic communications in the manner authorized herein, intercepts wire, oral, or electronic communications relating to offenses other than those specified in the order of authorization or approval, the contents thereof, and evidence derived therefrom, may be disclosed or used as provided in subsections (1) and (2) of this section [i.e., disclosed to other officers and used in police work]. Such contents and any evidence derived therefrom may be used under subsection (3) of this section [i.e., disclosed in court by the recipient] when authorized or approved by a judge of competent jurisdiction where such judge finds on subsequent application that the contents were otherwise intercepted in accordance with the provisions of this chapter. Such application shall be made as soon as practicable.
90. 308 U.S. 338, 340 (1939).
91. 18 U.S.C. § 2518(8)(d) (2006) (emphasis added).
92. Whitaker v. Garcetti, 291 F. Supp. 2d 1132, 1136-37 (C.D. Cal. 2003).
93. See Whitaker v. Garcetti, 486 F.3d 572, 575-76 (9th Cir. 2007).
94. 429 U.S. 413, 420 (1977).
95. 429 U.S. 413. at 438.
96. 429 U.S. 413. at 430-31 (quoting United States v. Chun, 503 F.2d 533, 540 (9th Cir. 1974)).
97. 429 U.S. 413. at 431-32.
98. Id. at 430 n.20 (alteration in original) (quoting 114 CONG. REC. 14,476 (1968)).
99. But cf. Whitaker v. Garcetti, 291 F. Supp. 2d 1132, 1149 n.36 (C.D. Cal. 2003) (concluding that the fact that a prior covert investigation occurred "might qualify as exculpatory evidence under Brady if the search itself is illegal and the evidence therein derived is deemed fruit of the poisonous tree").
100. See, e.g., Moran v. Burbine, 475 U.S. 412, 432-34 (1986).
101. Dowling v. United States, 493 U.S. 342, 353 (1990) (citation omitted) (quoting Rochin v. California, 342 U.S. 165, 173 (1952)); see also Rochin, 342 U.S. at 173 (holding under the Due Process Clause that "convictions cannot be brought about by methods that offend 'a sense of justice'" (quoting Brown v. Mississippi, 297 U.S. 278, 285-86 (1936)); id. ("Coerced confessions [violate due process because they] offend the community's sense of fair play and decency.").
102. 373 U.S. 83, 87 (1963) ("[S]uppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment. ").
103. In Brady, the suppressed statement was deemed material to punishment because it tended to suggest that Brady's coconspirator (and not Brady himself) had done the actual killing. 373 U.S. at 84. There was no question that Brady was guilty of the crime of which he had been convicted whether or not he did the actual killing, but the Court affirmed a lower court's decision to remand only on the punishment issue, agreeing with the lower court that the jury might have imposed a different punishment if Brady had been able to bring the suppressed statement as a means of separating himself from the actual killing. Id. at 85. By contrast, facts that establish the existence of a pre-hand-off search, even a clearly unlawful one, do not cast doubt on a criminal defendant's desert of punishment any more than they cast doubt on his actual guilt or innocence, because they do not involve the defendant's actions at all.
104. May 29 Motion, supra note 15, at 2.
105. June 14 Motion, supra note 12, at 7-8.
106. LR, D. MASS 116.2(B)(1)(b). An order suppressing or excluding evidence is appealable under 18 U.S.C. § 3731 if "the evidence is a substantial proof of a fact material in the proceeding." For a survey of state and federal local rules and orders defining Brady material, see LAURAL L. HOOPER ET AL., FED. JUDICIAL CTR., TREATMENT OF BRADY V. MARYLAND MATERIAL IN UNITED STATES DISTRICT AND STATE COURTS' RULES, ORDERS, AND POLICIES (2004), available at http://www.fjc.gov/public/pdf.nsf/lookup/BradyMat.pdf/$file/BradyMat.pdf.
107. Indeed, the fact that local rules vary in regard to guidelines for compliance with Brady is compelling evidence in itself that these guidelines are not considered constitutionally required.
108. See generally Feb. 13 Motion, supra note 9, at 1-9 (summarizing the facts in Man Nei Lui).
109. Whitaker v. Garcetti, 291 F. Supp. 2d 1132, 1136 (C.D. Cal. 2003).
110. Whitaker v. Garcetti, 291 F. Supp. 2d 1132 at 1137.
111. Indeed, on at least one occasion, a state government desiring to withhold information about a prior investigation but faced with direct questioning about it has sought in camera judicial review of relevant discovery requests, relying at least in part on claims of executive privilege. Press Release, supra note 26
112. CAL. EVID. CODE § 1040 (West 2010) (defining California's "Privilege for Official Information")
113. Whitaker, 291 F. Supp. 2d at 1147 n.32. The executive privilege argument was firmly rejected by the trial court in Whitaker, and discovery was ordered to proceed. 291 F. Supp. 2d at 1147 n.32.
114. Cf. Moore v. Illinois, 408 U.S. 786, 795 (1972) ("We know of no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case.").
115. Organized Crime Control Act of 1970, Pub. L. No. 91-452, tit. VII, pt. B, 84 Stat. 922, 935 (codified as amended at 18 U.S.C. § 3504 (2006)).
116. 18 U.S.C. § 3504(a)(3) (emphasis added).
117. Organized Crime Control Act of 1970 § 701, 84 Stat. at 935.
118. The bounds of the exigency exception could draw from existing law regarding search warrants. See, e.g., Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006) (collecting cases)
119. Mincey v. Arizona, 437 U.S. 385, 393-94 (1978) ("[W]arrants are generally required to search a person's home or his person unless 'the exigencies of the situation' make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment." (quoting McDonald v. United States, 335 U.S. 451, 456 (1948))).
120. Cf. June 14 Motion, supra note 12, at 9.