When an Arrest Warrant Cures a Bad Stop

This wikilog article is a draft, it was not published yet.

by: Ryan • September 10, 2011 • no comments

"The past isn't dead. It isn't even past."

That's a quote from William Faulkner, my favorite quote, and I was reminded of it today after seeing the petition for cert in Faulkner v. United States.

In law, we are guided by the arguments, opinions and beliefs that go back decades, even centuries. It can be hard to escape the shadow of rulings that were made thirty or forty or fifty years ago.

In Oregon, one ruling that hasn't faced any real challenges in a very long time is the one holding that an arrest warrant can purge the taint of an illegal seizure. In other words, the police seize your client unlawfully, but he's got a warrant, so any evidence found after the discovery of the warrant - evidence that otherwise would have fallen under the exclusionary rule - can still be offered against your client at the trial.

It may be a longshot, petitions for cert usually are, but in the aforementioned Faulkner petition, the question presented is:

Whether discovery by the police of an outstanding arrest warrant during a concededly unconstitutional seizure of a person purges the taint of the illegal seizure, permitting the government to introduce at trial evidence obtained as a direct consequence of an arrest on the outstanding warrant?

According to the petition, the lower courts are sharply divided on the issue.