The opinion of the court was delivered by: Wm. R. Wilson, Jr. United States District Judge
Pending are Defendants' Motion to Suppress Controlled Buy Evidence on the Grounds of Police Misconduct,*fn1 and Motion and Supplemental Motion for a Franks Hearing and to Suppress Controlled Buy Evidence.*fn2 The United States filed a Response to the Motion to Suppress,*fn3 and the supplemental motion.*fn4
On February 8, 2006, Defendants, Anthony Harris and Morine Harris, were indicted on two counts in a four-count indictment with aiding and abetting each other with possession and intent to distribute 106.5 (Count Three) and 5.18 (Count Four) grams of crack cocaine. The alleged crimes took place on September 20, 2005.*fn5 Defendant, Anthony Harris was separately indicted on two counts of distributing 2.2 (Count One) and 2.8 (Count Two) grams of crack cocaine on September 8, 2005 and September 16, 2005. A Superceding Indictment was entered July 11, 2007.*fn6
The Superceding Indictment re-charged Defendants with Counts One, Two, Three, and Four, and Defendant Anthony Harris was charged in a Fifth Count for distributing 0.2747 grams of crack cocaine on January 25, 2006.*fn7 The evidence supporting Counts Three and Four was collected during the execution of a search warrant, and the evidence supporting Counts One and Two was produced during two controlled buys made by a confidential informant.
Defendants allege that the controlled buys involved illegal conduct and, therefore, the related evidence should be suppressed. Defendants also request a Franks hearing*fn8 to determine if the search warrant for Defendant Morine Harris's home was based on false information in the affidavit.
The Prosecution counters that Defendants have not produced sufficient evidence of illegal conduct to warrant suppression, and have not made a substantial preliminary showing of deliberate deceit to justify a Franks hearing.*fn9
The Supreme Court has held that the exclusionary rule is not a remedy that should be applied lightly, but should be used to deter Fourth and Fifth Amendment violations.*fn10
Therefore, evidence obtained by an unconstitutional search and seizure,*fn11 and confessions taken in violation of the right against self-incrimination*fn12 are subject to the exclusionary rule. The majority of courts, including the Eighth Circuit, have held that the exclusionary rule should be used sparingly.
The Eighth Circuit describes the exclusionary rule as a "blunt instrument," and warned that courts should be reluctant to apply it to violations that are not of "constitutional magnitude."*fn13 Other circuits have explained that the exclusionary rule was not designed to "vindicate a broad, general right to be free of action not authorized by law, but to protect constitutionally protected rights."*fn14
Although the exclusionary rule has been applied to remedy statutory violations, the conduct forbidden by the statute addressed constitutionally protected rights.*fn15
Defendants also maintain that the police officers' illegal conduct violated substantive due process. This due process theory does not involve the exclusionary rule.*fn16 Its protection may be invoked ...