From the Incident through the System Legally: Knowledge Base of Legal Concepts

California State University, Dominguez Hills
University of Wisconsin, Parkside
Latest update: January 16, 1999
Faculty on the Site.

Substance of the Silver Platter Doctrine: Under the "so-called 'silver platter' doctrine ...evidence obtained by state agents in an unreasonable search and seizure was admissible in a federal criminal trial, where no federal agent participated in a search and seizure and the state officers did not act solely on behalf of the United States. This doctrine was overruled by a five-to-four decision in the Elkins case, in which the decision was rested upon the United States Supreme Court's supervisory power over the administration of criminal justice in the federal courts." 84 ALR2d 959, 962-3.

Simply put, federal officers cannot allow state police to do the dirty work, and then claim that they did not violate search and seizure rights. By analogy, no government agent can stand by, allow a private citizen to violate search and seizure strictures on the government's behalf, and then claim innocence as to the violation.

Additional authority: Annotation: 36 ALR3d 553 at 558:

[Some] courts have cited the anomalous result of admitting evidence unlawfully seized by private persons while rejecting the same evidence tendered by police officers, and have suggested that this amounts to an extension of the 'silver platter' doctrine which the Elkins Case repudiated.

Case authority:

• California:

  People v. North (1981) 29 Cal.3d 509, 514-5, 174 Val.Rptr. 511, 629 P. 2d 19.

  People v. McKinnon (1972) 7 Cal.3d 899, 103 Cal.Rptr. 897, 500 P.2d 1097. Nota bene: This opinion was written by Justice Stanley Mosk!

• U.S.:

  Elkins v. United States (1960) 364 U.S. 206, 4 L.Ed.2d 1669, 80 S.Ct. 1437.

From Justice Mosk's opinion in McKinnon:

"[I]n certain circumstances a private citizen may also be deemed to act as an agent of the police when the latter merely 'stand silently by,' i.e., when they knowingly permit the citizen to conduct an illegal search for their benefit and make no effort to protect [emphasis added] the rights of the person being searched. [Citation to Stapleton omitted.] This rule forestalls belated police claims that they did not actually 'direct' or 'request' their lay associate to undertake the illegal search, and thereby prevents them from doing indirectly--by silent but unmistakable [emphasis added] approval--what they cannot constitutionally do directly.

"[I]t is obvious that the rule cannot be invoked unless the police have both actual knowledge of the search and the opportunity to prevent it. [emphasis added] ... [T]hey knew of the search and could have intervened to stop it."