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NCJ Number: 94422 Find in a Library
Title: Novel Approach to Warrantless Seizures of the Home Inspirational or Aberrational Law?
Journal: Washington and Lee Law Review  Volume:41  Issue:1  Dated:(Winter 1984)  Pages:231-252
Author(s): JH Forte
Date Published: 1984
Page Count: 22
Format: Article
Language: English
Country: United States of America
Annotation: This article reviews recent State and Federal court decisions regarding whether or not a warrantless securing of a dwelling constitutes an unreasonable seizure under the fourth amendment, with attention to decisions in United States V. Allard, United States v. Lomas, and People v. Arnau.
Abstract: The Supreme Court has held that a warrantless search of a home is per se unreasonable under the fourth amendment unless police obtain the homeowner's consent or unless circumstances justify a search. The Court has applied the exclusionary rule to evidence seized in violation of the fourth amendment. However, courts have disagreed about whether a warrantless securing of a home mandates application of the exclusionary rule to supress evidence subsequently obtained pursuant to a lawful search. In Allard, upon appeal, the Ninth Federal Circuit Court found the agents' warrantless search illegal under the fourth amendment and rejected application of the independent source doctrine to admit evidence seized pursuant to the unlawful seizure. Instead, the Allard II (appeal) court advocated a new test to determine admissibility of evidence lawfully seized following a prior unlawful seizure of a home. This test provides that once a defendant has demonstrated an illegal search, the government has to prove that the prosecution would have both independently discovered and successfully obtained the evidence discovered during the subsequent lawful search of the premises to permit the admission of the illegally seized evidence. The Ninth Circuit then extended its test to situations in which police did not enter the premises but merely seized the premises pending application of a search warrant. Although most State courts have agreed with the Ninth Circuit in Allard II and Lomas, the New York Court of Appeals in Arnau disagreed. This court misplaced reliance on the Supreme Court's decision in Mincey v. Arizona as supportive of the court's position that a warrantless securing of a dwelling constitutes a reasonable seizure. Courts should apply the Allard II test to unlawful seizures since this test furthers the goals of the exclusionary rule with respect to unreasonable seizures as the independent source doctrine does with respect to unreasonable searches. Footnotes are included.
Index Term(s): Exceptions to exclusionary rule; Exclusionary rule; Search and seizure laws; US Supreme Court decisions; Warrantless search
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