Monday, August 11, 2008

Issues: D

V. Issues: D. Pennsylvania Authorities were able to obtain the relevant evidence from indetendent sources and the discovery of the email account was inevitable.

“The exclusionary rule prohibits introduction into evidence of tangible materials seized during an unlawfiil search, and of testimony concerning knowledge acquired during an unlawful search Murray v. United States 487 U.S. 533 (1988)(citing Weeks v. United States 232 U.S. 383 (1914) and Silverman v. United States 365 U.S. 505 (1961)). “Beyond that, the exclusionary rule also prohibits the introduction of derivative evidence, both tangible and testimonial, that is the product of the primary evidence, or that is otherwise acquired as an indirect result of the unlawful search, up to the point at which the connection with the unlawful search becomes so attenuated as to dissipate the taint.” Id. at 537 (citing Nardone v. United States 308 U.S. 338, 341 (1939); Wong Sun v. United States 371 U.S. 471, 484-485 (1963).

“The interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred. When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation.” Id. citing Nix v. Williams 467 U.S. 431, 443 (1984). “The independent source doctrine applies also to evidence initially discovered during, or as a consequence of, an unlawful search, but later obtained independently from activities untainted by the initial illegality. The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others.” Id. citing Silverthorne Lumber Co. v. United States 251 U.S. 385, 392 (1920).

“Information which is received through an illegal source is considered to be cleanly obtained when it arrives through an independent source.” Id. at 538 citing United States v. Silvestri 787 F. 2d 736, 739 (1986). “The independent source doctrine does not rest upon a metaphysical analysis, but upon the policy that, while the government should not profit from its illegal activity, neither should it be placed in a worse position than it would otherwise have occupied. So long as a later, lawflul seizure is genuinely independent of an earlier, tainted one, which may well be difficult to establish where the seized goods are kept in the police’s possession, there is no reason why the independent source doctrine should not apply.” Id. at 541.

“In addition, the inevitable discovery doctrine, with its distinct requirements, is in reality an extrapolation from the independent source doctrine: Since the tainted evidence would be admissible if in fact discovered though an independent source, it should be admissible if it inevitably would have been discovered.” Id. at 539.

The Commonwealth submits that, based on testimony, oral argument and the arguments contained in prior submissions that the evidence seized pursuant to the Virginia Beach warrant on the Defendants’ residence should not be suppressed. Even if the evidence seized were to be suppressed, the affidavits of probable cause for the respective email accounts in question still contained sufficient probable cause to obtain the sought after email account information. Even if the Court were to decide that the affidavits did not contain sufficient probable cause, the Commonwealth submits that the good faith exception would apply, thereby justifying the Magistrates’ issuance of and Pennsylvania authorities’ reliance upon the search warrants. Even if the Court were to decide that the warrants for the Virginia Beach residence and the email accounts in question were faulty and the 'good faith’ exception did not apply to any of the warrants, the Commonwealth submits that it still obtained the same information from independent sources and the emails in question would have been/were inevitably discovered by the Commonwealth; various recipients of emails sent from the email accounts in dispute, for example, Grant Roy, Sean Lockhart, Matthew Brannon and David Michaels were/are in lawful possession of the same email information the Commonwealth seeks to introduce and the Defendants are seeking to suppress.

Based on the foregoing, the Commonwealth respectfully requests that the Defendants’ joint motion to suppress information pursuant to search warrants for certain email accounts be denied and dismissed.