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Whether to exclude illegally obtained evidence in federal trials is left largely to the Court's discretion, for admissibility of evidence is governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. The Court has not seen fit to exclude illegally seized evidence in federal cases unless a federal officer perpetrated the wrong. Private detectives may use methods to obtain evidence not open to officers of the law. The Fourth Amendment right is treated as personal to the one asserting it, meaning that he who objects must claim some proprietary or possessory interest in that which was unlawfully searched or seized.
The police strongly suspected Irvine of illegal bookmaking but were without proof of it. On December 1, 1951, while Irvine and his wife were absent from their home, an officer arranged to have a locksmith go there and make a door key. Two days later, again in the absence of occupants, officers and a technician made entry into the home by the use of this key and installed a concealed microphone in the hall. A hole was bored in the roof of the house and wires were strung to transmit to a neighboring garage whatever sounds the microphone might pick up. Officers were posted in the garage to listen. On December 8, police again made surreptitious entry and moved the microphone, this time hiding it in the bedroom. Twenty days later, they again entered and placed the microphone in a closet, where the device remained until its purpose of enabling the officers to overhear incriminating statements was accomplished. Based on these evidence, Irvine was charged with horse-race bookmarking and related offenses against the antigambling laws of California. At the trial, officers were allowed to testify to conversations heard through their listening installations. The snatches of conversation which the prosecution thought useful were received in evidence. They were in the lingo of the race track and need not be recited, but the jury might well have regarded them as incriminating. The testimony was received under objection. Irvine was thereafter convicted.
Should Irvine’s conviction be set aside due to the illegally obtained evidence?
It must be noted that Irvine is not invoking the Constitution to prevent or punish a violation of his federal right recognized in Wolf or to recover reparations for the violation. He is invoking it only to set aside his own conviction of crime. That the rule of exclusion and reversal results in the escape of guilty persons is more capable of demonstration than that it deters invasions of right by the police. The case is made, so far as the police are concerned, when they announce that they have arrested their man. Rejection of the evidence does nothing to punish the wrong-doing official, while it may, and likely will, release the wrong-doing defendant. It deprives society of its remedy against one lawbreaker because he has been pursued by another. It protects one against whom incriminating evidence is discovered, but does nothing to protect innocent persons who are the victims of illegal but fruitless searches. The disciplinary or educational effect of the court's releasing the defendant for police misbehavior is so indirect as to be no more than a mild deterrent at best. Some discretion is still left to the states in criminal cases, for which they are largely responsible, and it is for them to determine which rule best serves them.