The Gazette 1980

SEPTEMBER 1980

GAZETTE

the rights of the third party by giving him damages in an action based on tort. Thus in Wong Sun v. U.S. 371 U.S. 471, two defendants were tried together on a narcotics charge. The first defendant, under illegal arrest, made statements which led the police to seize narcotics from a third party. These drugs were inadmissible evidence against the first defendant as they were the fruits of the unconstitutional action of the State against him. The same evidence was admissible against the second defendant as a violation of no right of his led to their production which would entitle him to object to their use at his trial. The rule is stated in Jones v. U.S., 262 U.S. 257. " In order to qualify as a person agrieved by an unlawful search and seizure one must have been the victim of a search and seizure common to one against whom the search is directed, as distinct from one who claims prejudice only through the use of evidence gathered as a consequence of a search and seizure directed at someone else. "Ordinarily, then, it is entirely proper to require of one who seeks to challenge the legality of the search as the basis for surpressing relevant evidence that he alleged, and if the allegation be disputed that he established, that he himself was the victim of an invasion of privacy." (2) As the burden to vindicate the citizen's constitutional rights is on the State the evidence sought to be adduced by the State will only be inadmissible where their servants or agents have been the perpretators of the breach of the accused's constitutional rights. Again in this respect we follow the position in the United States. Thus in Burdow v. McDowell 1931, 256 U.S. 465, the petitioner accused was charged with illegally transmitting mail. He was employed and had an office at the premises of Doherty and Co. as head of their Natural Gas Division. On the petitioners dismissal from office for alleged fraudulent malpractises an officer of the company placed McDowell's office in the hands of private detectives and grilled open his private safe to obtain his papers which were later surrendered to the Federal Prosecutor Burdow. On indictment the petitioner objected to the use of evidence so obtained as a violation of the rule in Week's case. Mr. Justice Day held that the case did not fall within the doctrine of the exclusion of the fruits of the poison tree expounded in Week's case. He stated that the constitu- tional prohibition was intended: "As a restraint upon the activities of the sovereign authority, and was not intended to be a limitation upon other governmental agencies." (3) The third exception in American law to the doctrine of the exclusion of the fruits of the poisoned tree does not seem to be implicit in the judgment of Walsh J. in O'Brien's case and may not be followed here. It is less logical than the previous two. In Walder v. U.S. 247 U.S. 62 (1953) heroin had been obtained from the petitioner through unconstitutional search and seizure. An indict- ment against him for illegal possession of narcotics was dismissed for lack of admissible evidence. On a subsequent indictment for illegal dealings in narcotics the petitioner testified that he had never purchased, sold, or possessed any drugs. To impeach his testimony the prosecution introduced the testimony of officers who had participated in the earlier search and siezure and the evidence of the chemist who had analysed the drugs

seized. The Trial Judge admitted the evidence but charged the jury carefully that it went to the credit of the accused's testimony but was irrelevant to the issue of guilt. Frank- furter J. affirmed the Trial Judge's decision and said: "The Government cannot violate the Fourth Amend- ment in the only way that the Government can do anything, namely through its agents - and use the fruits of such unlawful conduct to secure a conviction; Weeks v. U.S., 233 U.S. Nor can the Government make indirect use of such evidence for its case; Silverthorne Lumber Co. v. U.S. 251 U.S. or support a conviction obtained through leads from the unlawfully obtained evidence. Cf. Nordone v. U.S., 308 U.S. All these methods are outlawed and convictions obtained from them invalidate it because they encouraged the kind of society that is obnoxious to free men. It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the Defen- dant can turn the illegal method by which the evidence was obtained to his own advantage and provide himself with a shield against his own untruths. Such an extension would be a pervertion of the Weeks doctrine." It strikes me as illogical that unconstitutionally obtained evidence may be admitted in a criminal trial to prove that the accused is a liar but cannot be admitted to prove that he is a murderer. Evidence Admitted in Extraordinary Circumstances Even though the rule in O'Brien's case is infringed, under the rule extraordinary circumstances may excuse the breach of the accused's rights, and allow the evidence to be admitted. Walsh J. in his judgment in O'Brien's case mentioned as extraordinary and excusing circumstances, the destruction of vital evidence, and the need to rescue a victim in peril. He also included a search incidental to and contemperaneous with unlawful arrest though made without a valid search warrant; in England the common law has developed to the extent of making this action within the law; Cf. Jeffrey v. Black [1978] 1 All E.R. 559. The rationale for the existence of these circum stances, which would allow the unconstitutionally obtained evidence to be admitted, appears from the judgment in O'Brien's case to be that in certain extra- ordinary circumstances the obligation, placed on the State by Article 40.2. to vindicate the personal rights of the citizen may have to yield in extraordinary circumstances to a higher duty, that of protecting the rights to life of a citizen in peril or of rescuing vital evidence which is about to be destroyed. If, in these extraordinary circumstances the State has no obligation to vindicate the accused's personal rights, that duty will not fall on the Courts, as the obligation on the Government under Article 40.2, is not an absolute one but is expressed in terms of "protect as best it ma y ". The extraordinary circumstances will necessitate a breach of the accused's personal rights but that breach will not be a failure to vindicate his rights as best the State may in circumstances of sufficient gravity and urgency. In these circumstances there may be no constitutional mandate.

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