Accounting for Federalism in State Courts - Exclusion of Evidence Obtained Lawfully by Federal Agents

43 Pages Posted: 5 Nov 2007  

Robert M. Bloom

Boston College Law School

Hillary J. Massey

Boston College

Abstract

After the terrorist attacks on September 11th, Congress greatly enhanced federal law enforcement powers through enactment of the U.S.A. Patriot Act. The Supreme Court also has provided more leeway to federal officers in the past few decades, for example by limiting the scope of the exclusionary rule. At the same time, many states have interpreted their constitutions to provide greater individual protections to their citizens than provided by the federal constitution. This phenomenon has sometimes created a wide disparity between the investigatory techniques available to federal versus state law enforcement officers. As a result, state courts sometimes must decide whether to suppress evidence obtained legally by federal law enforcement officers but in violation of state law. In deciding these cases the states usually rely on a state evidentiary basis ignoring federalism concerns. This article proposes a framework by which state courts may suppress this evidence while recognizing notions of federalism.

Keywords: evidence, sneak and peak warrant, Patriot Act, search warrant, reservation clause, Tenth Amendment, Supremacy Clause, Article VI,

Suggested Citation

Bloom, Robert M. and Massey, Hillary J., Accounting for Federalism in State Courts - Exclusion of Evidence Obtained Lawfully by Federal Agents. University of Colorado Law Review, Vol. 79; Boston College Law School Research Paper No. 142. Available at SSRN: https://ssrn.com/abstract=1026357

Robert M. Bloom (Contact Author)

Boston College Law School ( email )

885 Centre Street
Newton, MA 02459-1163
United States

Hillary J. Massey

Boston College ( email )

140 Commonwealth Avenue
Chestnut Hill, MA 02467
United States

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