Friday, July 18, 2008

NY Times Article Attempts to Undermine Exclusionary Rule

The exclusionary rule is one that says if the police violate the 4th amendment of the Constitution (against illegal searches and seizures), then the remedy is the exclusion of that evidence. Sounds simple, and drastic, enough.

Practically speaking, it almost never happens. The exclusionary rule has been one which the police have used as their basis to fabricate probable cause over the last 50 years, not one which has overly restricted them in most areas they fight the most crime (note that the exclusionary rule has probably had great effect in wealthier neighborhoods where there is less crime - the police there are more afraid of the power of the residents to wreak havoc on them if they violate citizen rights there - there is little concern getting in trouble for violating rights in poor minority neighborhoods unless it's caught on camera). It used to be that the police could invade your home with impunity, arrest you, search you, violate all of your rights, and there was nothing you could do about it. In a case known as Mapp v. Ohio, the Earl Warren Supreme Court extended the exclusionary rule to all state actors (meaning all branches of state and local law enforcement).

The facts of Mapp were instructive, and they are actually recited in this new NY Times article that has spurred me to write here. The police basically went into the home of a woman they did not like, manhandled and abused her, searched it carefully, and arrested her for, get this - obscenity. If you ask me, the only obscenity was the police conduct. The Supreme Court agreed, and determined that the only way it could ever deter police conduct like this was to let them know that all of the fruits of their efforts would be in vain in the future if they did this, and hence, the said that any fruit of the poisonous tree must be discarded and cannot be used against a defendant.

One thing the Times article mentions is that this is an area in which the US gives far greater protection than in any other Western society to the accused. Evidently, the fact that we are out of sync with other countries bothers conservatives on this one (they show no similar concern when it involves things like, say, the death penalty).

However, a few things must be noted.

Police in this country are probably more politically powerful and involved than in any other country. Police unions give huge sums to politicians, police chiefs are mainstays of any politician's campaign, and few people ever dare to cross the police in any election here. What does that mean - it means that in our adversarial system, the police and prosecution hold nearly all of the cards - if the police violate the law with impunity, and they are not punished immediately, they really have little fear of lawsuits down the road, as most of these defendants make terrible plaintiffs. No one will ever take their case, and they'll probably lose anyways.

In this country, the punishments for even minor crimes can be so dramatically more severe than in other countries, the effect of even a little bit of police fudging can have the immediate effect of people spending the rest of their lives in prison. The Canadian case contrasted in the article talks about a man who was pulled over without a front license plate and the police found 77 pounds of coke in his car - he got 5 years. I can tell you, in many states, he'd get life. In California, he'd probably get 15-20 years, and in the federal system, he'd probably do more. The police mistake in that case was that the suspect's car did not need a front license plate because he was from a province that did not require front plates, but was driving in one that did so require them.

In the US, there is an exception called "good faith" (or the Leon exception, named after the Leon case). This exception has nearly swallowed the whole rule, because in a case such as the Canadian one, the officer could simply say "I made an honest mistake, I never knew that Alberta law did not require front plates, and he was driving in Ontario, so I thought he was violating Ontario law." In Canada, even a small mistake like this was a big deal, in the US, it would barely merit mention unless it was a huge crime, and even then it would only be a minor footnote. There would be no backlash against the police for that.

The final thing is, Judges are extremely reluctant to throw evidence out and anger the police, either by calling their judgment into question, or by calling them a liar. I have won only a handful of motions to suppress in my career, despite doing this for nearly 15 years, and running hundreds of them. Consider the OJ case. If ever there was a situation where the officers clearly lied as a basis to jump his wall and search his residence, this was it. They fabricated probable cause so Mark Fuhrman could then find the bloody glove on the path. The Judge in the case found that the detectives showed reckless disregard for the truth when they recounted why they did the search. Everyone clearly knew that they were lying (they also broke into his car and found evidence there). However, the evidence was not suppressed. Why not? Because Judges will bend over backwards to ensure that they don't piss off police (who will then withdraw support from them, and help run candidates against them, possibly costing them their jobs). So, such a few number of motions to suppress are ever granted, the rules have become almost meaningless.

Bottom line - as nearly meaningless as the rules have become, they still paint very specific rules for the police to follow which protect all of us, criminals or not, every time we come in contact with the state. They ostensibly protect us in our homes, that police can't just break down our door with impunity, so they can't pull us over for a minor traffic infraction, take us the station, and search our cars top to bottom for no reason.

On the other hand, the rules are strict, and the result has probably been that this leads to a greater culture of police fabrication of evidence than any other thing in the law. The problem is, once the line of fabrication has been crossed, so easily and so often, it is hard to ever tell the difference between lying about probable cause to nail a seemingly "guilty" person, and lying about actual evidence to nail that same "guilty" person.

All in all, without it, there will be functionally no check on law enforcement, so when the Supreme Court hears a case challenging the whole basis of the exclusionary rule next year, cross your collective fingers that your freedoms remain somewhat intact, and the rule remains in place.


Anonymous said...

In my experience, there really isn't much check on law enforcement other than my ability to get the cops to impeach each other. Many judges in my area have extreme difficulty believing that a cop would ever lie about anything in court.

One Judge in particular had this "line" that he would always say before denying my motions of "while counsel points out some differences in testimony, I don't find it impeaching, it's just minor insignificant detail."

I kept appealing his rulings and FINALLY the appellate court came to it's senses and threw his language right back at him and told him that what he considered "minor insignificant detail" was in fact "major impeachment."

It wasn't until the appellate court smacked him with his own language did he start granting motions.

As for the Supremes, I won't be holding my breath expecting them to ever do the right thing....

The Underblawger said...

It's awesome to see you posting again. It's a real talent to take a concept like the exclusionary rule and cogently explain 1) why we need it, and 2) why it doesn't really work. If drugs are found, or whatever, most people don't care if rights are violated. They should read your post and think about that some more.

Dennis Wilkins said...

An excellent post, PD Dude. I am again reminded why it was that I wanted to join your team.

The exclusionary rule is, at its essence, an imperfect fit, and always has been. But its continued existence is a reflection of the fact that NO OTHER DECENT SOLUTIONS HAVE COME INTO BEING.

The idea behind the exclusionary rule is that violations of our privacy is a serious matter, and that the states have done far too little to protect privacy - the High Court had to step in. What has changed today? Have the amounts of privacy invasions DEcreased? On the contrary, they have gotten worse. And the response from most law-enforcement agencies has not been to understand and comply with the law and with notions of privacy, but to constantly demand increased intrusions on privacy, and the roll-back of constitutional protections, in addition to more and better prepartion and support for "police perjury."

There is something different about our democracy when compared to Europe and others. In some ways we really are freer. Wedon't have as many socialist-type institutions as in various places around the globe, especially Europe. They tolerate stuff there that we wouldn't. I remember reading a story from the early 1990's about a town in Britain that had a terrible murder. The police got everyon in the the town, EVERYONE, to give blood for DNA, which then ended up in their database. Could you imagine the uproar if we did that here?

Sometimes I wish we were more like Europe, in that there is no death penalty and the sentences are much shorter. Plus, criminal justice issues aren't as politicized. But the exclusionary rule seems to be the right remedy - how else are we to combat the awesome power of the police when it is intent upon destroying our privacy?

Look at the abuses of civil rights that George Bush has perpetrated on the American people in the form of wiretapping. Or on citizens of other countries (and a few Americans) with the prison at Guantanamo. In fact, with Bush's secrecy we will never know the extent of his abuses. It is amazing that Watergate ever happened, considering the conduct Bush has gotten away with. Is this truly a government we "trust" with protecting our privacy? I'll take a (hopefully) neutral court over the government to stop police abuses any time.

Weak as the exclusionar rule has become, it is still better than the alternative: Trust the police to "not be bad" and to "respct our privacy." Yeah, that'll work.

Dennis Wilkins
The Guest PD Blogger