License to Kill?: A New Test for the New Crime Exception

Abstract

Imagine that a police officer racially profiles and forcibly arrests an African American man without even reasonable suspicion that he committed a crime. Further, imagine that the man responds by committing a crime such as running away as the officer reaches for his handcuffs or giving the officer a fake name when asked to identify himself. The new crime exception to the Fourth Amendment exclusionary rule allows for prosecutors to introduce evidence connected to new crimes committed by defendants who were illegally detained and/or questioned. Courts largely have applied this new crime exception without any analytical framework or any regard for the severity of the initial police misconduct or the defendant’s response. Moreover, courts have begun applying the new crime exception to crimes such as giving a fake name in response to an un-Mirandized interrogation following a lawful arrest.

This article argues that the new crime exception has swallowed the exclusionary rule, but that courts can recalibrate the exception by returning it to its roots in the attenuation doctrine. By applying that doctrine’s traditional framework with a central focus on the purpose and flagrancy of the defendant’s new crime, courts can replace their current “all or nothing” approach with a cost-benefit balancing that will better serve public policy goals in a more nuanced way. This central focus on the purpose and flagrancy of the new crime should mirror the approach currently applied under a different exclusionary rule that deals with the dichotomy between past and future crimes: the attorney-client privilege.

Keywords: Fourth Amendment, Miranda Doctrine

JEL Classification: K14, K42