It’s a Tuesday in Missoula, Montana and the roads have turned to slush. Early January cannot decide between sleet and snow: roads are rough. I meet my father at a café downtown—I’ve asked him for thirty minutes of his time for an interview. As my Grandmother says, he is a criminal…defense attorney. And he’s the best attorney I know, because he does not remove personhood from his profession. I have met many of his clients, who he views as whole people despite damning headlines. To my father, the whole of one’s character is worth more than a crime. He respects, values, and admires his clients, allowing them to exist in his eyes as more than the charges pressed against them.

As children, my sisters and I were trained well: when my father came home with a new case, we’d run up to him as he set his briefcase down in the doorway and inquire in chorus, “What didn’t he do this time, papa?” Of course, our question was somewhat in jest: while I respected my father’s unconditional belief in the right to representation, I knew that there were cases, and not infrequently, in which my father’s client was indeed guilty as charged. But when, as a child, I would ask how he defends the guilty, the answer from my father was unfailingly consistent: the question is often not whether or not a crime was committed, but rather if the peacekeepers and civilians also followed the law. Evidence obtained unlawfully, he’d insist, is like a cancer that corrupts the entire case. So, one unwarranted traffic stop that leads to a major drug bust might make the entire operation a botched job in which the criminals cannot rightfully be prosecuted.

I thought it funny that my father, who breathed and bled defense, seemed to be equally bound to prosecuting the State.

My father’s anecdotes and emphatic Italian gesticulation offered credos to his every word when I was a young girl, but as I grew older I wondered what constitutional or de jure foundations supported his approach to defense. So I asked him to sit down for an interview—a father-daughter game of question and answer—to learn which Supreme Court cases wield the greatest gavel in the world of criminal defense.

***

My father settles into the chair across from me. I sit up straighter, and begin:

Stella Shannon: Which Supreme Court case is most relevant to your work?

Craig Shannon: Silverthorne Lumber Co., Inc. vs. United States 251 U.S. 385

S: Can you give me a brief explanation of this case?

He is not brief. He speaks clearly, as if on the radio, just fast enough for me to know that I will never become a court reporter.

C: In a nutshell, what is says is—its way back, like 1928—and what it says is that the government can’t use any information they gather illegally to prosecute you at all.

He enunciates “at all” as if it might be the most important two-word combination in the world.

C: So if they get evidence from an illegal stop or an illegal wiretap, search, questioning, or surveillance, they can’t use that information to prosecute you in any way, shape or form. And then cases have come down from that explaining what “at all” means.

He goes on to explain the inevitable search doctrine, a qualification to the “at all” rule that allows for the admission of evidence obtained illegally if the discovery of that evidence was inevitable—if it would have occurred regardless of the illegally gathered information.

C: Prosecutors will try to say “yeah, I know that we beat him for the confession and for the discovery of the body location and for the weapon, but we had a search party in the woods that was convening on that specific location anyways! And discovery of the body and the weapon was inevitable—meanwhile I was back at the jailhouse beating him so I found out the information first, but the discovery was inevitable because of the search party!” In such instances, the Supreme Court said that “at all” (as in “the government can’t use any information they gather illegally to prosecute you at all.”) does not apply. This is called the inevitable discovery doctrine, and it is an exception to the “at all” restriction.

The inevitable discovery doctrine isn’t the only qualification of Silverthorne’s “at all” rule. The malleable boundaries of “at all’s” practical reach are an example of what frustrates and inspires the practical implications of the law: as my father describes, language provides a concrete basis that is then given life and power through logic and the passage of time.

C: See, there are all these cases off the Silverthorne “at all” language—you’d think it’s clear, but [it’s not]. Different scenarios occur and you have to take account of the language and decide whether or not it fits directly. That’s the cool thing about law—it’s not black and white. Language is very concrete but we have to decide how it applies to the nuanced fact scenario that keeps changing.

It must be an individual’s unwillingness to accept a single interpretation of written word, then, that makes them an astute lawyer.

S: What does Silverthorne mean for you in practice?

C: A lot of the cases that I work on focus on the Fourth Amendment, search and seizure. Whether the search, the stop, or the questioning was legal. This recent case of mine was very interesting because it involved a subtle twist.

S: You can’t just say “subtle twist” and then leave us hanging. What happened?

C: Okay, so there’s this other case called Franks vs. Delaware. It’s known as the Franks case. And what that case says is that if you’ve got a search warrant that includes information gained from an illegal source, or that was meant to intentionally mislead the magistrate—basically it was a lie, right? But the cop knew—Franks says you excise that information from the search warrant and then you review it anew—de novo.

S: All right, so Franks clarifies the scope of Silverthorne’s “at all” by saying that a defendant has the right to challenge information or evidence obtained through false or misleading statements in addition to illegal evidence. You mentioned search warrants and that seems to be a pretty important part of understanding how these cases apply to your work. Can you explain the warrant process?

C: Let me back up. So the way the process works is that the cop applies for the search warrant and he puts information in it to establish probable cause to believe a crime was committed and that evidence of the crime will be found at the place to be searched.

And then the cop gives that application to the judge. The judge reads it. If he agrees that it establishes probable cause, he grants the warrant and the cop takes the warrant and searches. Assuming they find the evidence or the contraband, and the guy is charged, then he goes to a lawyer.

If the lawyer sees that information included in the application was either gained illegally or is deliberately misleading—that it’s inaccurate or a lie—then the lawyer has grounds to file a motion to suppress the search, based on Franks.

S: Okay, so Franks allows the defense to demand that a judge re-examine evidence obtained as a result of both illegal and misleading information. What happens next?

C: [The defense attorney] will argue that the tainted information should be excised from the application and the sanitized application should be reviewed de novo. And if that sanitized application fails the probable cause test, then the fruits of the search are all inadmissible. Now, that’s Silverthorne. All this comes from Silverthorne, right? So, it’s one of my favorite cases.

The one other thing I’d add would be—it’s a subtle but important nuance to the independent search doctrine: even if the illegally gained information merely “prompted” the cop to seek the warrant, merely prompted! Frank says that the illegal information is excised.

The independent search doctrine says that if illegal actions lead to the discovery of evidence (such as coercion of an admission or an illegal traffic stop), this evidence can be used if it is later discovered by some means that is untainted by (or independent of) the original illegality. Back to my father’s example: if someone is beaten in order to find out where the body is hidden, but the body was found by a separate search party later on that had no knowledge of the coerced admission, then the body can still be entered into evidence.

S: So Franks says that illegal information that prompts the cop to seek a warrant must be excluded and then the warrant can be reviewed without that specific, illegally obtained information, and if the judge thinks that the warrant is still valid, the court proceeds.

C: However another case, Murray vs. U.S., says that the entire warrant is suppressed without the excision and the de novo review. So Murray takes Franks and goes a step further—“we’re not going to just do this surgery on the warrant. If Silverthorne says you can’t use illegal information at all, and the illegal information prompted the warrant, then it’s all suppressed!”

Now I see where my father grounds his belief that illegalities on the part of the state are cancerous for the entire body of a warrant; illegally obtained information is not a tumor that can be removed but rather a metastatic and malignant mark on the warrant as a whole. And without the warrant, the evidence cannot be admitted.

C: That’s a very subtle issue that doesn’t come up much because it’s hard to prove. But it’s a distinction that criminal defense lawyers need to keep in mind.

Silence for a moment as I finish typing. Just when my fingers slow, he concludes:

C: At all! Criminal defense lawyers need to remember the breadth of this “at all!”

He raises his arms, as if to quantify the importance of the phrase’s depth.

S: In two sentences, what is the take-away from Silverthorne?

C: It says that the government cannot use evidence gained illegally to prosecute a citizen at all, in any way shape or form. And it’s up to the creative criminal defense lawyer to expand on that language. Period.

Three sentences, but I let him get away with it.

C: Can I say another one?

He looks up eagerly. It’s evident that after thirty-some years of practice, the Supreme Court and its language are still important—inspiring, even—to his day-to-day practice.

C: Gideon!

He shouts it like “jackpot,” “bingo” or “kowabunga!”

S: It’s time to wrap up—

C: But Gideon!

He protests with a charming twist of his face, the creases around his mouth insist on attention. I wonder how many juries have seen this same expression and leaned in, re-inspired after hours of testimony. He could have been an actor, I think.

C: The right to an attorney! The government is just bullying and bulldozing its citizens— without Gideon vs. Wainwright’s right to council requirement!

I remember Gideon from my high school Government class: “Just think of a criminal jumping onto his attorney—giddy-up!” my mom had said, grinning about her impromptu memory device as she mimed a lasso in the air. Yes, Gideon.  

S: Let’s talk about Gideon next time.

He nods. Surprisingly agreeable for a trial lawyer, I think.