What Can ''Convicted Because Illegal Search'' Prisoners Do About It ?

In Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976), the Court considered whether state prisoners making claims that they were convicted because evidence procured by unlawful searches and seizures was admitted at their trials should be allowed to assert a constitutional violation claim in federal habeas corpus proceedings. The Court reviewed the development of the exclusionary rule which was made applicable to the states by Mapp. Stone, 428 U.S. at 482-84. At the outset of its review the Court noted that the exclusionary rule was a judicially-created means of effectuating the rights secured by the Fourth Amendment and that prior to Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652 (1914), and Gouled v. United States, 255 U.S. 298, 41 S. Ct. 261, 65 L. Ed. 647 (1921), no barrier existed to the introduction in criminal trials of evidence obtained in violation of the Amendment. Stone, 428 U.S. at 482. The Court also noted that in Mapp only four justices adopted the view that the Fourth Amendment itself requires exclusion of unconstitutionally-seized evidence in state criminal trials; that Justice Douglas concurred; and that Justice Black concurred on the basis that the Fourth Amendment alone was not sufficient basis for the exclusionary rule, but that the rule emerged when the Fourth and Fifth Amendments were considered together. Stone, 428 U.S. at 484 n.21. The Court then forthrightly stated that "Post-Mapp decisions have established that the [exclusionary] rule is not a personal constitutional right." Stone, 428 U.S. at 486. Language in the recent decision of Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 118 S. Ct. 2014, 141 L. Ed. 2d 344 (1998) directly addresses the issue which we must answer in determining whether the admission of the illegally-seized evidence at appellant's trial was federal constitutional error as referred to by Rule 44.2(a). In Scott, the Court considered whether the rule excluding evidence seized in violation of the Fourth Amendment applies in state parole revocation hearings. The Court held that the rule does not so apply. In beginning its discussion of law surrounding the issue, the Court succinctly and clearly stated its position on the question now before us: "We have emphasized repeatedly that the State's use of evidence obtained in violation of the Fourth Amendment does not itself violate the Constitution." Scott, 524 U.S. at 362, 118 S. Ct. at 2019. We conclude that the trial court's error in admitting evidence obtained in violation of appellant's Fourth Amendment rights did not directly offend the United States Constitution, was not required by the Constitution itself, and therefore was not federal constitutional error for purposes of Rule 44.2(a). See Tate, 988 S.W.2d at 890.