<論説>私人による違法獲得証拠と証拠排除 : アメリカ合衆国判例の検討を中心として

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概要

• 論文の詳細を見る

• It was established in 1921 that the evidence obtained illegally by a private person was not subject to the exclusionary rule. The leading case is Burdeau v. McDowell case, in which it was held that the Fourth Amendment of the Constitution was intended solely as a restraint upon the governmental activities but not intended to apply to the conducts by private individuals. Since then many cases of federal and state courts have depended themselves on the Burdeau decision to admit such an evidence in criminal prosecutions. However, in the case where the private party acquired the evidence in a wrongful manner but the police participate or are involved in that search, the evidence would be excluded from the proceedings because it is not regarded as the private action but rather the governmental one to which the Fourth Amendment applies. Recently, on the admissibility of the evidence by private searches or seizures, a remarkable decision appeared in the supreme court of California; it is the People v. Zelinski case. In that case, store detectives obtained narcotics from a female shoplifter as a result of their unlawful investigation. The court found them to be private citizens, while it held that their illegal activities were assumed to be deterred in future by exclusion of the evidence and they had had "public function" in their searches which should be subject to the constitution of California. It concluded that the materials they seized in violation of her constitutional rights must be excluded from her criminal trial. In this paper the author intends to follow the cases of the United States for the purpose of examining the exclusionary rule and illegal private searches and seizures. It containes as follows : I. Introduction II. The Burdeau case and the tendency of state cases 1. The Burdeau v. McDowell case 2. On the state cases since the Burdeau decision 3. The cases in the 1960s (1). On the state cases since the Mapp v. Ohio case (2). The fluctuation in case law III. The trend of cases in the 1970s 1. The patterns of private searches and seizures 2. The quasi-police doctrine 3. The People v. Zelinski case in 1979 IV. Conclusion

• 関西学院大学の論文
• 1982-03-26

著者

• 河野 通弘

  関西学院大学法政学会

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• 黙秘権と行政手続 : アメリカ合衆国連邦最高裁判決の検討を中心に
• 令状にたいする challenge (審査請求)権 : アメリカ合衆国における情報提供者問題を契機に
• 私人による違法獲得証拠と証拠排除 : アメリカ合衆国判例の検討を中心として

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