i. There is another exception to the exclusionary rule, called the "good
faith exception." It applies in the case of a search or seizure that "resulted
from an authorization to search, seize, or apprehend issued by an individual
competent to issue the authorization... or from a search warrant or arrest
warrant issued by competent authority."
For it to apply, the individual
issuing the authorization or warrant must have a "substantial basis for
determining the existence of probable cause" and the police who execute the
authorization or warrant must have "reasonably and with good faith relied on
the issuance of the authorization or warrant" (MRE 311(b)3). This exception,
then, deals with search and seizure problems. It is, then, very limited in its
application. It is aimed at "technical deficiencies as to the establishment of
probable cause for the search authorization." U.S. v. Queen, 20 MJ 817 (NMCMR,
If you violate the requirements of Article 31 or Miranda, this good
faith exception will not save the resulting confession. Again, remember that
it only applies in the situations noted above.
3. The problem of successive statements.
Assume that you have violated
Article 31/Miranda, and have obtained a confession that is going to be
inadmissible in court. Is there any way you can cure this defect and obtain a
second statement that WILL be admissible? If so, how? The basic problem in
such a situation is that the unlawfully obtained confession may have tainted,
or contaminated, any subsequent statement that the suspect may make. U.S. v.
Ravenel, 26 MJ 344 (CMA, 1988).
In other words, "if the government obtains
admissions illegally, and they are of a nature likely to produce a subsequent
confession, a strong showing that a subsequent warning severed the presumptive
influence must be made to permit use of the confession. Furthermore, absent
any showing that the accused knew or had been informed that his prior
admissions could not be used against him, the fact that he was advised of his
rights prior to the execution of his (second) confession would normally not
avoid (exclusion)." U.S. v. Bennett, 21 CMR 223 (CMA, 1956).
a. A confession, then, is inadmissible if it is "tainted by an earlier,
The issue is whether the later confession had been
produced by the first. If so, BOTH are inadmissible. The government, then,
must make a "strong showing of severance from the presumptive influence of the
earlier confession... a mere repetition of the warning necessitated by...
Article 31 is normally insufficient to avoid the inadmissibility of the later
The government must go further, and "must strongly demonstrate
that the later admissions and confessions were not the product of the earlier,
inadmissible declaration." It is, indeed, a "heavy burden." U.S. v. Powell,
32 CMR 365 (CMA, 1962).
b. "Whether the influence of the first confession taints a later
confession is basically a question of fact that depends for its determination
upon consideration of all of the relevant circumstances." In other words, did
the suspect make the second statement because he was afraid that "the cat was
already out of the bag" and could not be rebagged? If so, then the second
statement has been made under the influence of the first, and both are
inadmissible. U.S. v. Caliendo, 32 CMR 405 (CMA, 1962). The problem, then, is
that there is a "presumptive influence" of the first statement upon the making
of the second one. The government's job, then, is to somehow overcome