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Evidence developed during a police search tainted by media presence need not be excluded so long as the media did not “discover or develop any evidence later used at trial.”

Ray and Lourdes (“Lou”) Duenas’s isolated jungle property was raided by the Guamanian Police Department (“GPD”) and federal agencies. The search resulted in the discovery of a substantial amount of methamphetamine and “one of the largest” seizures of stolen goods in Guam’s history. Police officials, in what was characterized during testimony as “a highly unusual departure from protocol,” toured journalists through the Duenases’ property. The district court found that the officials’ management of the search was “woefully inadequate” and done in violation of the Duenases’ Fourth Amendment rights. However, the district court denied the Duenases’ motion to suppress the physical evidence seized from the property. The Court found that this evidence was “not subject to the exclusionary rule” because the media did not assist in the search or freely roam the property. The Duenases were ultimately convicted on multiple counts and sentenced to 25 and 20 years respectively. The Ninth Circuit cited cases showing that a Fourth Amendment violation does not per se invoke the exclusionary rule. The Court held that evidence developed during police searches tainted by a media presence need not be excluded at trial so long as the media did not “discover or develop any evidence later used at trial.” The Court suggested that a Bivens action more appropriately served the deterrence goals of the exclusionary rule in these circumstances. The Court upheld Lou’s conviction and vacated Ray's sentence and reversed his conviction. The Court determined that the district court erred when it failed to apply the McFall “fundamental objective” test in considering Ray’s motives for cross-examining a since-deceased police officer during a suppression hearing. No. 09-10492 VACATED and REVERSED; No. 09-10496 AFFIRMED.