Is the Exclusionary Rule Dead?

Or is it merely on life support?

Here is an early result of the pernicious decision in Herring v. United States, the Supreme Court ruling that refused to apply the exclusionary rule to an unlawful search that resulted from a police agency's failure to remove a withdrawn warrant from its database:

In one of the first trial court decisions to interpret Herring, a federal judge in New Jersey took the broader view, refusing to suppress evidence obtained from computer hard drives under a search warrant based on false information supplied by a Secret Service agent. The agent had told the judge that DVDs found during an earlier search contained child pornography. This was false: other law enforcement officials had reviewed the DVDs and had found no child pornography. The agent, who was leading the investigation, testified that he did not know of that review when he made his statement.

[More ...]

I don't know the facts of the New Jersey case, but it seems to me the Secret Service agent either made up a story about porn found on DVD's, or some other law enforcement agent lied to the Secret Service agent so that the warrant could be issued. Even if there is a more innocent explanation for the agent's false representation, this hardly seems analogous to a clerical error that kept a withdrawn warrant in a police database.

Judge Stanley Chesler, declining to suppress the results of the search despite the erroneous information upon which the search warrant application was based, apparently relied upon this language in Herring:

“To trigger the exclusionary rule,” [Chief Justice Roberts] wrote, “police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” That price, the chief justice wrote, “is, of course, letting guilty and possibly dangerous defendants go free.”

Roberts' language suggests that police "culpability" should in some unspecified way be balanced against the risk of "letting guilty and possibly dangerous defendants go free." Framed in that language, Roberts seems to be asking: Which is worse? A law-violating (but probably not dangerous) police officer or a law-violating (but possibly dangerous) criminal? How does the Fourth Amendment ever win if that's the question?

The price of not suppressing evidence when police violate the law is the loss of our Fourth Amendment protections. How do we put a pricetag on constitutional privacy rights, other than to remember the wars our nation has fought to protect our Constitution and the freedom it ensures?

If there is no remedy when the police invent facts to secure a search warrant, we can be certain that's what the police will do. If there is no remedy when the police don't bother with a warrant and simply bust down our doors, we can be certain that's what the police will do. The framers were certain that individuals needed protection from their government; that's why the Fourth Amendment is in our Bill of Rights.

Justice Scalia's argument, recently advanced in Hudson v. Michigan (violations of knock-and-announce rules when executing search warrants do not justify suppression), is that individuals whose rights are violated can sue the police (which Justice Scalia apparently views as an effective deterrent to lawlessness), and in any event police agencies have become more "professional" since the exclusionary rule came into effect, making it no longer necessary. The notion that police worry about being sued is laughable (particularly if they think the person whose rights they're violating is guilty, since juries have little sympathy for criminals and will side with the righteous cop every time), and the Justice's faith in police professionalism (faith that TL writers challenged here and here) is undermined by reality:

Justice Scalia cited the work of a criminologist, Samuel Walker, to support his point about increased police professionalism. Professor Walker responded with an opinion article in The Los Angeles Times saying that Justice Scalia had misrepresented his work. Better police work, Professor Walker said, was a consequence of the exclusionary rule rather than a reason to do away with it.

In this article, the indispensable Adam Liptak asks whether the Court is on course to dispense with the exclusionary rule entirely. He notes the probability that four votes already exist to overturn Mapp v. Ohio and sees the holdings in Herring and Hudson as handwriting on the wall.

Justice Kennedy, as usual these days, is the swing vote. He seems prepared to let the Court chip away at the exclusionary rule but has also signaled an unwillingness to abandon it entirely.

Justice Kennedy signed the majority decision [in Hudson], adopting Justice Scalia’s sweeping language. Oddly, though, he also wrote separately to say that “the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt.”

Despite the irritating individuals who didn't think it would matter whether Obama or McCain won the election, Liptak reminds us how important the Obama election might turn out to be to the composition of the Supreme Court -- and to the exclusionary rule:

“From the point of view of a liberal concerned about criminal procedure,” said Yale Kamisar, a law professor at the University of San Diego, “we were saved by Barack Obama in the nick of time. If ever there was a court that was establishing the foundations for overthrowing the exclusionary rule, it was this one.”
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    unfortunately, (none / 0) (#1)
    by cpinva on Sun Feb 01, 2009 at 03:54:36 AM EST
    as long as this court exists, in its current manifestation, the damage to our constitution, done over the course of the past 8 years, will continue, regardless of who controls the congress and white house.

    Time to face facts and move on. (none / 0) (#2)
    by JamesTX on Sun Feb 01, 2009 at 03:59:44 AM EST
    The author speaks of the choice between

    A law-violating (but probably not dangerous) police officer or a law-violating (but possibly dangerous) criminal?

    I must have missed where the conclusion came from that a law-violating police force is probably not dangerous. I guess that is based on the traditional sentimental image of the "nice police officer."  Does the idea spring from an assumption that, while an ungoverned police officer might not be "fair" with "criminals", he or she won't actually hurt good citizens? That assumption is based in conservative folly. It is part of the "we are the good guys" fallacy that has brought us to the precipice in human rights.

    Everyone here knows that "nice police officer" becomes a threatening thug within moments of being relieved of constraint. When they have no incentive to obey the law, police become immediately dangerous in the immediate physical sense as much as in the abstract. After all, they are armed, and they are powerful. What reason do they have for constraint in enforcement of their viewpoint over the citizens' version? Police with no restraint are by definition dangerous. We don't have to look far beyond our borders, or far into the history within our borders, to see unequivocal proof of that. Armed gangs with no checks on their power are immediate physical dangers. Samuel Walker's observation that more professional policing is the effect, rather than the cause, of the exclusionary rule is a statement of the obvious.  

    I am afraid Liptak's opinion that the court is going to be saved by Obama in the "nick of time" is a little overly optimistic. All I see Obama being able to do is to hold the approximate current balance...nay, bias...at  best. Obama's slight tendency to appease conservatives suggests he won't even do that. We will likely not see appointees the likes of Justices Stevens, Souter, Ginsberg, or Breyer again in our lifetimes. The opinions of these jurists have come to be seen as too "radically liberal" to easily pass the process today -- even among so-called Democrats.  Can you imagine the wailing that would ensue after nomination of one of these people today? The best we can hope for today is more of the likes of Kennedy, who, although seen as an ally, actually betrays us more often than guarding our liberties.  

    Just like the conservatives during the Warren Court era, we might be better off to accept the fact that our side has lost the Federal Judiciary -- essentially permanently.  When you consider what the conservatives have done with their appointments below the level of SCOTUS, it becomes quite clear. We are done. You can stick a fork in us. Let's look at what the conservative movement did when they finally came to realize that they had lost the judiciary. They redoubled their efforts in other areas and waited it out. They started at the bottom of government and worked their way up. Although their cause looked hopeless at time, they eventually gave us one of the worst whippings in the history of the government.

    Perhaps Kennedy is, in fact, pointing us in the right direction. He may not be able or willing to help carry the flame, but he may be moral enough to give us some sound advice. If the only thing that will deter misconduct is civil action against police who violate the Constitution, and if the only other route into the state's wallet is to sue police that violate rights, then we need to look at ways to improve our chances in that process. I realize that remedy looks like chopped liver compared our habit of relying on sound Federal precedent to protect Constitutional rights. But when we get hungry enough, we will have to eat what is available.

    The U.S. government is an evolving and morphing system. Although I realize some Constitutional scholars technically disagree, that is a fact. Maybe it ought not be, but it is. When one door closes and locks, the only option is to look for another door. Throughout history, that is how balance has been maintained.  And it has worked, at least up until now. There are many, many doors into the government. They may be stuck or temporarily out of service, but they might could be knocked ajar and their pathways into to Ballroom of Justice cleared and cleaned up. At the heart of success in Kennedy's proposed solution is the jury. The conservatives may be on the brink of losing their comfortable expectation of unequivocal majorities in every small sample of the public. Maybe it's time to start working that angle?

    Here is what I.... (5.00 / 1) (#7)
    by NYShooter on Sun Feb 01, 2009 at 05:16:48 PM EST
     .....don't understand.

    The Republican Party has unabashedly displayed itself to be the enemy of 99% of the American people. Unfortunately, and ironically, It is also a  party far more honest than the Democratic Party. There is no nuance, no obfuscation, and no duplicity in what they stand for, namely seizing all offices, and powers, of our government for the enjoyment of the chosen 1%, and reducing the rest to a life of indentured servitude.... in perpetuity.

    Their goal for America, which simmered beneath the radar for decades, exploded in earnest with the election of Ronald Reagan, and ripped away any pretense of wanting to achieve their goals within the ideals of a Democracy. They have ruthlessly managed to eliminate the kryptonite wall separating "de jure" from "de facto" from all the institutions of government during their astonishingly successful drive towards their totalitarian goal.

    I agree with previous writers here that their infestation and debasement of The Judiciary is the most dangerous, and long lived, success that they've managed.
    Therefore, my question is: Why do we have to just accept it? There is a weapon available to us to change things. The attitude of many freedom loving Americans, "woe is me, they've cynically stacked the judiciary with young ideologues, guaranteeing that the destruction continues for decades to come," is just silly, and not based in reality or fact. Those attorneys and justices are like Herpes, they are" the gift that keeps on giving,"

    Impeach them!

    Don't worry about the "slippery slope, setting a precedent, or on what basis." We are not dealing with a rational opponent who shares the ideals of our Founders, but "just have a different approach." We are dealing with a proven mortal enemy.

    Children in Germany are asking, "but, how was it possible for the Third Reich to be born, and all the unspeakable death and destruction that ensued, when He did it all legally?"

    The Republicans were willing to thwart the American People's choice of President, and overturn a free and fair election.........over a b.j.

    Don't tell me we can't find "grounds."


    It is widely known (none / 0) (#9)
    by JamesTX on Sun Feb 01, 2009 at 09:48:58 PM EST
    that Rhenquist's bluff (when he was at the DOJ investigating Abe Fortas) actually changed the balance of the court. Rhenquist had no evidence on Fortas, and probably couldn't have ousted him. The point is, that is how they got started toward this goal they have finally achieved. They actually did attack a sitting justice, and harassed him into resignation. Since everyone knows that history now, though, I doubt it would be so easy to do again! We are probably stuck, unless one of these people actually does something wrong. There is always the hope they will. Conservatives are more prone to that because they think they are above the law. Maybe one of them will act on that!

    Addendum... (none / 0) (#3)
    by JamesTX on Sun Feb 01, 2009 at 04:58:02 AM EST
    On further examination, I think TChris has captured the essence here of the problem in conservative reasoning. This problem can be reduced to logic:

    A law-violating (but probably not dangerous) police officer or a law-violating (but possibly dangerous) criminal?

    It seems that we have finally succumbed to conservative fallacy at a level that is frightening. Why? Because even though I disagreed with the statement, I didn't immediate see that it was a logical contradiction. That means I read sense into a nonsensical statement, mainly because this error has been promoted for so long by conservatives that it seems normal.

    Although TChris points out the problems with the framing, I missed the fact that it has a logical problem to begin with. I thought law-violating meant criminal. So, a law-violating police officer is not a criminal. Therein lies the rub. It is at the heart of the conservative fallacy and the "we are the good guys" reasoning. It shows the problems of making "criminality" an identity rather than a behavior label. We have betrayed language, which basically means we have betrayed civilization. If "criminal" means more than "law-breaking", then what does it mean? If "law-breaking" is not "criminal" when done by the police, then what is it? This is the G.W. Bush doctrine gone mad.

    We have come to believe that the label of "criminal" means something important beyond violation of the law. But the definition is not made public and explicit. It is the "good guys and bad guys" assumption carried to the point that it violates reason and logic.

    Justice is carefully edited (none / 0) (#4)
    by 1980Ford on Sun Feb 01, 2009 at 09:44:43 AM EST
    "Cops" since 1989. Now MSNBC's "Lockup" and "To Catch a Predator."

    The authorities are in control of this editing because making LE look bad would end the agreements. Conclusion: law enforcement is perfect. Bad guys aren't. An entire generation was raised on "Cops" and everyone knows "presumed innocent" is just something that has to be said because of some stupid technicality somewhere, but nobody knows or cares what the source of that stupid technicality is. And fiction TV is inundated with cops in the good v. evil genre. That is why these kinds of posts get so few comments. Who cares?

    Obama's record on (none / 0) (#5)
    by dk on Sun Feb 01, 2009 at 10:07:16 AM EST
    fourth amendment matters is mixed.  Or would you like us to forget the FISA vote?

    Great Post (none / 0) (#6)
    by squeaky on Sun Feb 01, 2009 at 12:54:34 PM EST
    This is bad. Ironically the exclusionary rule has been working, and that is the logic for disbanding it. Do we have to return to 17th or 18th century England to find out that the founding fathers were right on the money by inserting the 4th amendment?

    Police always need to be checked, given unlimited power to do the right thing they will always abuse it as did the police of King George III.

    Me no so happy . . . (none / 0) (#8)
    by Sumner on Sun Feb 01, 2009 at 08:21:22 PM EST
    with these guys that will bend over backwards and contort to the extreme when pandering to and protecting corporate interests, such as making antitrust suits go away, yet throw the little guys to the lions with utter wreckless abandon, nay, glee.

    Me thinks it's all about shifting to the courts for revenuing, since the rich no likee paying taxes.

    what evidence here? (none / 0) (#10)
    by diogenes on Sun Feb 01, 2009 at 11:10:19 PM EST
    If there was no child porn on the computers, then exactly what was found on the search that created a criminal case that was appealed to the Supreme Court?