Supreme Court Revisits Exclusionary Rule

The Supreme Court heard two cases yesterday dealing with the exclusionary rule and the fourth Amendment.

The exclusionary rule case is Herring v. United States. Criminal defense attorney Cheryl Stein has an op-ed in the Washington Times on why we need to keep the rule, and I encourage everyone to read it, granting TalkLeft permission to reprint it in full here. It appears below the fold:

Exclusionary rule's crucial role by Cheryl Stein

There is a growing public awareness that the war on terror has also become a war on the civil liberties of Americans, that we are trading privacy for the illusion of security and will soon have neither. The assault on our rights that began more than 20 years ago with the war on drugs has mushroomed in the last few years.

Now there is a threat to one of the last remaining bulwarks against governmental intrusions into our lives: the exclusionary rule, which provides that evidence illegally seized by the police cannot be used as evidence in court. The simple fact is that the exclusionary rule is vital to the preservation of our liberties and must be maintained.

The Supreme Court on Tuesday will consider the case of Herring v. United States, which questions whether that rule should be curtailed. In 2004, sheriff's deputies in Coffee County, Ala. arrested Bennie Herring based on a computer entry that showed an outstanding warrant for him, even though the warrant had been withdrawn five months earlier. He was then prosecuted for the drugs and gun found during the arrest.

Although the trial judge and the federal appeals court both found the arrest illegal and that the sheriff's department was negligent in not maintaining accurate records, they allowed the government to use the evidence, concluding the officers acted in good faith and that the exclusionary rule should not apply.

Critics of the rule have made the same arguments for decades: It does not protect innocent people; there are civil and administrative remedies available for those whose rights are violated; other countries do not employ the rule; and a "blunder" by the police should not cause a criminal to go free. None of these arguments can survive the test of actual experience.

It is true that the exclusionary rule does not provide any remedy for an innocent person who has been the victim of an unreasonable search; an innocent person has no remedy but a civil suit. Filing a lawsuit, however, will not help anyone who possessed something illegal. Jurors have no sympathy for such people and will not award them compensation. Administrative remedies exist only in theory. Police departments do not discipline their own for illegal searches that uncover illegal contraband.

Most perplexing is the argument that we should abandon the exclusionary rule because it is not endorsed by other democracies, as such an argument does not seem to be applied in any other area. Almost every other democracy in the world has abolished capital punishment. Yet no critics of the exclusionary rule have called for an end to the death penalty on the grounds that all our allies have eliminated it. Why should we accept moral instruction from other countries on the exclusionary rule when we do not do so on capital punishment?

Critics of the exclusionary rule fail to acknowledge it has been substantially narrowed in recent decades. Though the rule originally applied to all illegal searches, the Supreme Court decided 25 years ago that, with rare exceptions, it does not apply in cases where the police obtained a search warrant. That decision greatly reduced the number of cases where the rule is applied.

The contention that we should not allow a blunder by the police to confer a benefit on a criminal defendant would be reasonable only if most illegal searches are the result of good-faith mistakes. The sad fact is, however, that the vast majority of illegal searches are the result of deliberate misconduct by the police.

Political commentators and law professors who have never been in a courtroom except to defend their own traffic tickets may not understand that fact, but every practicing criminal defense lawyer knows it to be true. The rule provides the only legal brake on police misconduct. Without its sanctions, the Constitution's guarantee against unreasonable searches would be empty.

Finally, the critics fail to address one of the most important reasons the rule was adopted in the first place: to preserve the integrity of our court system. The Supreme Court explained its necessity more than 40 years ago: "If the government becomes a lawbreaker, it breeds contempt for law, it invites every man to become a law unto himself; it invites anarchy." The rule "gives to the individual no more than that which the Constitution guarantees him, to the police officer no less than that to which honest law enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true administration of justice." To forget that teaching is to abandon all that is best and brightest about our system of government.

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    Fascisim in America (none / 0) (#1)
    by Mikeb302000 on Wed Oct 08, 2008 at 05:05:56 AM EST
    I agree wholeheartedly that this is "one of the last remaining bulwarks against governmental intrusions into our lives." Without this rule, nothing would prevent law enforcement people from abusing their rights, even worse they'd be encouraged to do so.

    Nothing to argue with here ... (none / 0) (#2)
    by Robot Porter on Wed Oct 08, 2008 at 05:17:30 AM EST
    the exclusionary rule is absolutely vital and goes to the heart of the constitutional protections of the individual against the state.

    which is why i fully expect (none / 0) (#3)
    by cpinva on Wed Oct 08, 2008 at 06:23:28 AM EST
    this court to eviscerate it.

    the exclusionary rule is absolutely vital and goes to the heart of the constitutional protections of the individual against the state.

    the roberts court sees no benefit to the state in protecting the rights of individuals, per the constitution. in fact, it seems to view the constitution as merely an impediment to a perfect police state.

    they won't get rid of it completely (none / 0) (#4)
    by txpublicdefender on Wed Oct 08, 2008 at 07:12:01 AM EST
    I doubt the Roberts court would get rid of the exclusionary rule.  Roberts doesn't like to actually overrule anything.  Instead, he will just narrowly construe it to say that if the police are relying in good faith on a report from dispatch of a warrant existing, then it should not apply.  That's his MO.

    As much as Texas justice gets a bad rap, we have a state law that forbids the use of evidence obtained in violation of the law, even if the illegal action was not by state actors.  So, even if SCOTUS gets rid of it, Texans will still have it.

    I agree, though, that the ivory tower pronouncements about how there are other remedies for law enforcement misconduct like administrative discipline and civil suits is absolutely ludicrous.  The ONLY thing that keeps most police officers from breaking the rules on search and seizure (those that don't break the rules or don't break them and lie about it) is the knowledge that the evidence they get will not be admissible.  Anyone who professes otherwise is a complete moron who knows nothing about how the real world of law enforcement works.

    Roberts came within ... (none / 0) (#6)
    by Robot Porter on Wed Oct 08, 2008 at 08:34:12 AM EST
    a hair's breath of reversing Brown v. Board of Education.

    And you think he wouldn't eviscerate the exclusionary rule?

    Get real.


    get real? (none / 0) (#7)
    by txpublicdefender on Wed Oct 08, 2008 at 09:43:53 AM EST
    I am plenty "real," thank you very much.  I don't doubt that they might come within a hair's breath of reversing it, but I don't think they will.

    The oral argument (none / 0) (#5)
    by Steve M on Wed Oct 08, 2008 at 08:22:04 AM EST
    featured the usual proclamations by Justice Scalia, who loves to argue that maybe we needed the exclusionary rule once upon a time, but now police work is sufficiently professionalized in his opinion and so incentives don't make any difference any more.  Bleh.