Neighbor turns evidence over to police

M r . J u s t i c e John Conway Harrison dissenting:
I r e s p e c t f u l l y d i s s e n t . While I recognize t h a t both
the Coburn case and the Brecht case have been p a r t of our
case l a w f o r several years and t h a t a t least one l e g i s l a t u r e
has had the opportunity t o change the law established i n
these opinions, I f e e l now, as I did when I dissented t o
those opinions, t h a t we w e r e e s t a b l i s h i n g bad law.
Here, we have a p r i v a t e c i t i z e n , who i n no way can be
considered an agent of the S t a t e , turning over evidence t o
the S t a t e t h a t she had procured i n an assumed t r e s p a s s on
her neighbors' property. She had no other i n t e r e s t than t o
enforce the law, and her a c t of turning over the evidence t o
the s h e r i f f ' s o f f i c e is d i f f e r e n t from t h a t of H i l l i s i n the
Coburn case, where H i l l i s had a previous agreement with the
police t o g e t the evidence from h i s employee's pocket. I
believe under the f a c t s here Coburn is c l e a r l y d i s t i n g u i s h a b l e .
Prior t o Brecht and Coburn the purpose of the exclusionary
r u l e was t o guarantee t h a t the S t a t e and i t s authorized
representatives would observe an i n d i v i d u a l ' s c o n s t i t u t i o n a l
r i g h t s . The r u l e was t o p r o t e c t t h e individual from i l l e g a l
police a c t i v i t y . It did not encompass i l l e g a l searches by
p r i v a t e individuals; its basic purpose, as s t a t e d above, w a s
t o deter police a c t i v i t y and thereby guarantee the p u r i t y of
t h e j u d i c i a l process. Once we extend the exclusionary r u l e
t o p r i v a t e persons, a s we a r e doing here, said extensions
can and w i l l extend the r u l e beyond any l o g i c a l purpose.
For these reasons I would r e v e r s e t h e D i s t r i c t c o u r t ' s order
of suppression and send the case t o t r i a l .