H/t to Patterico.
2/23/2009: And welcome RSMcCain readers!
Some at the New York Times apparently have themselves all worked up over their fear that the current Supreme Court may do away with the Exclusionary Rule (the rule that excludes evidence that was seized in violation of the 4th Amendment from being used at trial against the person whose rights were violated). In short, the 4th Amendment requires that police officers get a warrant before conducting a search or a seizure. There are a few, very narrow exceptions to this rule. For example, once police officers make a valid arrest they may search the individual without obtaining a warrant. Likewise, police officers that are in “hot pursuit” of an individual (the individual having committed a crime or having a valid warrant for his arrest outstanding) may enter homes and other structures without a warrant to catch the offender (they must be in “hot pursuit,” though). However, when police officers search or seize a person (or a dwelling, automobile, etc.) and do not have a warrant, or do not fall under one of the exceptions to the warrant rule, the “Exclusionary Rule” mandates that the evidence seized while violating the individuals 4th Amendment rights be excluded from Court.
In 1957, the Cleveland police showed up at Dollree Mapp’s home looking for a bombing suspect. Ms. Mapp would not let them in without a search warrant, but they entered anyway. The police did not find the bomber, but they came across a trunk containing “lewd and lascivious” books and pictures.
Ms. Mapp was convicted of possessing obscene materials, even though the evidence was taken without a warrant. She was tried in state court, like the overwhelming majority of criminal defendants. So it did her no good that federal courts had applied the so-called “exclusionary rule” since 1914 to bar the use of illegally seized evidence.
In 1961, in Mapp v. Ohio, the Supreme Court reversed Ms. Mapp’s conviction and adopted the exclusionary rule as a national standard. The court acknowledged that the rule might let some criminals go free, but it underscored that it was more important to compel the nation’s police forces to obey the law…
[C]ritics of the exclusionary rule have high hopes that the Roberts court will take the ultimate step of overruling Mapp v. Ohio. That would be a great setback for the rule of law.
First of all, I’m not so sure Roberts has done anything to signify he’s going to overturn Mapp v. Ohio. New York Times articles are known for their huff and puff, especially as related to critiquing conservatives, and this article appears to be no exception.
Second of all, I should mention that I generally support the Exclusionary Rule. I’ve used it a number of times, but, as the critics note, each time a guilty man has walked away from prosecution (which in my cases have included crack dealers and drunk drivers). Although guilty people do go free, I do not personally have any problem with pleading the rule via motion when necessary. At this juncture, it is the seminal way of making sure the police have done their job in accordance with Constitutional requirements. And, as a remedy made available by the Supreme Court, a defense attorney would be committing malpractice to simply ignore its usefulness because of some political disagreement with the rule itself.
All things above considered, however, I do not think that overruling the Exclusionary Rule is necessarily a bad thing.
The Exclusionary Rule is not a Constitutional requirement. The 4th Amendment states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The 4th Amendment proscribes unreasonable searches and seizures, but supplies no remedy for police or government searches or seizures that are deemed “unreasonable” (nor are the terms “unreasonable,” “search,” or “seizure” defined). On that basis alone, the very constitutionality of the Exclusionary Rule should be questioned. The Times’ columnist notes that the Court “adopted” the Exclusionary Rule in 1961, but the word “adopted” is just a fancy way of saying “made up.” While I do not mean to imply that the Justices invented the Rule in 1961, they decided at that time to apply it forcefully to state courts, despite the fact that it was not called for in the Constitution, despite the fact that most state courts had explicitly rejected the exclusion of evidence as a remedy for police misconduct, and despite the fact that Congress, the proper body for creating law, had not seen fit to apply the Exclusionary Rule. In any event, the word “adopted” still conveys what happened here – the Court decided to incorporate a thusfar unused “rule” into the 4th Amendment. Of course, had Congress created the rule via Constitutionally-granted powers, the constitutionality of the Rule would be unquestioned and this entire discussion would be moot. And while I recognize that it is the Court’s job to interpret the Constitution, statutes, etc., the Exclusionary Rule is beyond simple 4th Amendment interpretation. There is no interpretation of the 4th Amendment that would call for the Exclusionary Rule. The words of the Amendment simply do not lend themselves to any remedial interpretation.
This constitutionality argument should not be taken lightly by those who jealously guard their civil rights and civil liberties, either. Whether you are a liberal fresh from decrying the Bush Administration’s write-tapping, a liberal generally fearful of what the Roberts Court might do, a conservative tired of perceived judicial activism, or simply a civil libertarian putting personal liberty above all things, precedent by one Court that “expands” or “adds to” Constitiutional jurisprudence, even if you agree with it, sets up subsequent courts to make similar policy determinations, and you might not agree with the Court in the future (especially if the makeup of the Court has changed over a substantial period of time). The Court simply should not be in the business of creating its own remedies based on its idea of what policy should be (that “idea” being simply a product of a majority of 9 unelected judges using the conventional wisdom of the day (see “A ‘Living Constitution’ is a Dead One.”). The only reason we are talking about removing the Exclusionary Rule today is because it clearly is not a Constitutional requirement, nor was it propounded by Congress. But because it was promulgated by a previous Court, tomorrow we could be talking about a 5-member portion of the Court considering the creation of a new “rule” or “remedy” based on their conservative or liberal ideas of what “should” be policy. Rules and remedies that are creatures of judicial, rather than legislative, action set precedent I do not think we should be setting.
Constitutionality aside, the biggest problem with the Exclusionary Rule, of course, is that it succeeds in setting a guilty party free. If we consider the remedies for other Constitutional infractions against criminal defendants it becomes clear how radical the Exclusionary Rule truly is. For example, if law enforcement officials were to extract a confession while violating the 8th Amendment’s proscription against “cruel and unusual punishment,” or in violation of the 6th Amendment’s right to counsel, the confession is tossed out because the confession itself – the proof of the defendant’s guilt – is itself called into question. In short, because of the violation of the defendant’s Constitutional rights, the evidence against the defendant (the confession) is inherently unreliable. We simply do not trust confessions that are the result of beatings or of the denial of legal counsel. In doubting the reliability of the confession, we are doubting the defendant’s guilt itself. Thus, the remedy here exists to protect innocent people.
To the contrary, when the police violate the accused’s 4th Amendment rights, the remedy protects a clearly guilty individual. Unlike the previous examples, the Exclusionary Rule excludes perfectly reliable evidence. For example, it is illegal to possess cocaine. If the police were to kick down a man’s door sans a warrant and discover a large amount of cocaine, the man, notwithstanding the violation of his 4th Amendment rights, is clearly guilty of possessing cocaine. There is no exception to the illegality of cocaine possession. The man had it; the man is guilty. Further, the police misconduct does not cast doubt on the reliability of the cocaine as evidence of guilt. Unlike a coerced confession, the cocaine did not appear because the officers kicked down the door. It existed independently of any police action. Yet, because of the police misconduct, the individual clearly guilty of cocaine possession has the strongest evidence against him – the cocaine – excluded (assuming it was his 4th Amendment rights that were violated), virtually assuring he will not be convicted of cocaine possession.
But do not mistake this post as standing for the proposition that the Exclusionary Rule should simply be dismissed. As I said, I like the rule considering the alternative of having no remedy. But why can’t a remedy be fashioned that does not free guilty parties? The whole purpose of the Rule is to prevent police misconduct and to prevent violations of individual Constitutional rights. Is there no way to accomplish those goals while keeping guilty parties in jail?
One alternative that has been proposed has been to punish the police officers personally. I am not a fan of this, as I recognize that punishing police officers by disciplining them via suspension or termination because of a Court-determined violation would probably have the unintended consequence of making officers second guess themselves at every turn, and could possibly prevent them from doing something that they feel is right, or prudent, simply because they fear personal repercussions for mistakes. The potentially deadly consequences of such a regime are too heavy a cost.
But what about a civil remedy? Would it not be prudent to consider leaving civil rights violations under the 4th Amendment exclusively to civil rights 1983 actions?
42 USCA Sec. 1983 was originally enacted by Congress as part of the Ku Klux Klan Act of 1871, pursuant to the power granted to Congress under Section 5 of Amendment 14 to the US Constitution. Although its initial purpose was to protect the constitutional rights of racial minorities in the Reconstruction South, it was written broadly enough to create a federal cause of action for anyone whose rights have been violated under the 14th Amendment. Since the 14th Amendment incorporates many of the first 10 Amendments to the US Constitution, and makes those provisions applicable against the states and state officials, a “1983 Action” is an effective means of bringing suit in Federal court against State Officials that have violated Constitutional rights such as the right to free speech, freedom of religion, to be free from unreasonable search and seizure, and to just compensation for takings of private property…
Unfortunately, one of the biggest hurdles to winning a damages award in a 1983 Action is Sovereign Immunity…Although the 14th Amendment’s Section 5 probably would give Congress the power to abolish common law sovereign immunity, the courts have assumed that Congress has chosen not to exercise this power. However, police officers and other state executive officials are regarded by the courts as having a mere “qualified immunity”, rather than an “absolute” immunity, which means, for police officers, that the defense of good faith and probable cause, which was available to police officers at common law, is available under a Section 1983 action. If a police officer fails to act with “good faith and probable cause”, then he becomes liable for a damages award under a Section 1983 action.
Under such a regime, police officers who have violated an accused’s civil rights would be subject to a lawsuit for damages, but would be able to avail themselves of “qualified immunity” if they were acting in good faith or had probable cause (a subjective standard applied to each individual officer). This would eliminate any concerns about “second guessing,” as officers acting in good faith would have nothing to fear. Only the officer acting deliberately, or in a way contrary to how a “reasonable” officer in his or her shoes would act, has anything to fear. Of course, officers prepared to deliberately violate a suspect’s rights will be willing to do so under any regime as long as they feel they can get away with it, but will probably think twice before doing so if it might cost them a great deal of money (while the threat of having the evidence excluded does not personally affect them and may not sway their decision).
What I dislike about this last regime is that the burden of proof in a section 1983 action will be on the plaintiff (plaintiff in the civil action being the criminally accused / defendant who allegedly had his rights violated). Thus, an officer that violated someone’s Constitutional rights could simply sit back and rely on the fact that the poor defendant simply cannot prove it. Granted, the burden of proof will be a civil burden and not the more stringent criminal standard of “beyond a reasonable doubt.” This is in stark contrast to the current regime, which holds that a warrantless search is per se unreasonable (and in violation of the 4th Amendment) and that the burden is thus on the government to prove by a preponderance of the evidence that their search falls within an exception to the warrant rule and is thus not unreasonable. So, it would switch the burden from the government justifying the search to the defendant proving it was unjustifiable. I’m not crazy about that, either, considering that an exercise of freedom and personal security never need be justified, while the exercise of power necessarily must be always.
The above would also take care of the Times’ concerns:
In the last few years, the Atlanta and Oakland police departments have had major scandals over officers’ lying to obtain search warrants. In this same period, of course, the federal government engaged in an illegal domestic wiretapping program, the extent of which is still unknown.
Again, the deliberate lying to obtain a warrant would subject the liars to personal damages (and would probably cost the liars their jobs), but would not set any clearly guilty parties free as the best evidence against them would no longer be excluded. Of course, the “illegal domestic wiretapping program” seems a bit out of place, as the 4th Amendment does not apply to that situation.
As far as the other Times’ critiques are concerned…
The exclusionary rule does more than simply put a check on police misconduct. It protects the integrity of the judicial system. If courts put people like Ms. Mapp in prison based on the actions of lawless, marauding police officers, respect for the law suffers.
I have not ever found this to be the case. More people complain about “technicalities” setting defendants free than complain about whether or not the evidence proving a defendant’s guilt was discovered in contravention of the law. Of course, the amount of the officers’ egregiousness has something to say about this; a particularly egregious violation, like the use of clearly excessive force by officers, or search warrants based on police fraud or deception, will certainly catch people’s attention and make the news. Likewise, however, a criminal defendant who has committed an inordinate number of crimes, or has been involved in major criminal activity, but finds himself free based on a “technicality,” will also certainly arouse the anger of the public. (To be clear, lawyers do not consider Constitutional Law concepts that might set a defendant free to be “technicalities” – they are simply the law; “technicalities,” however, seem to be the prevalent description used by the population at-large.)
There is no denying that the exclusionary rule allows a small number of criminals to go free because the police have blundered — which is certainly no minor matter. But the more faithfully the rule is applied, the more likely the police are to collect evidence lawfully.
I’m not sure how strong this argument is, simply because by acknowledging the “small number of criminals” affected by the rule you similarly acknowledge the “small number” of violations by police officers. When the New York Times has earlier in the article beat a tiny drum of hysteria in the hopes of having you believe that the Rule is necessary to keep “the lawman” from violating all our rights, this admission seems to deflate that argument. The violations clearly happen very little. Of course, if you believe that all lawmen are inherently bad and are simply following the rules because the Exclusionary Rule forces their hand, then you might not find this reasoning persuasive. Me, I always figured most law enforcement officials were inherently honest and hard-working, and that the Exclusionary Rule was not for them. The Rule was simply an attempt to prevent that small percentage of “bad apples” from violating rights, as well as to ensure that police departments adopt appropriate standards. As Scalia has noted, however, most police departments are currently very professional. Thus, most departments have proper standards and do not need any guidance from an Exclusionary Rule. Therefore, outside of trying to prevent a few bad apples from breaking the rules, the Exclusionary Rule has become even less necessary than it once may have been.
In any event, I have not found this idea (that police officers collect evidence more faithfully because of the Rule) to be the case. The New York Times’ two main examples of police/government misconduct, placed in a blockquote, above, both happened while the Exclusionary Rule was the law. They were decidedly not prevented by the Exclusionary Rule, which makes them suspect examples for why we need the Exclusionary Rule. And while I agree that under the current regime honest police officers will consider doing the right thing in order to make sure their collected evidence is admissible, honest police officers in the 1983 regime will also consider their actions before subjecting themselves to civil suit. Except that under the 1983 regime, the guilty party still goes to jail. In fact, shady police officers might actually be more willing to play in the grey areas of the law if the only repercussion is the exclusion of evidence, but might not be so willing to do so if the repercussions include personal damages.
The Times concludes with an inappropriate quote:
As important as it is to convict criminals, the Supreme Court in Mapp rightly insisted that the Constitution must not be trampled in the process. “Nothing can destroy a government more quickly,” the court noted, “than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.”
Again, the Exclusionary Rule is not in the Constitution, so eliminating it will not result in the “trampling” of the Constitution. Further, there are other ways to enforce the Constitution’s provisions outside of the Exclusionary Rule. Thus, the abrogation of the Exclusionary Rule will not result in a “trampling” of the Constitution due to a lack of enforcement of the Constitution’s actual provisions, either.
Of course, it would take a pretty concerted PR campaign to actually convince America that there are alternatives to the Exclusionary Rule. The biggest problem would simply be that for most Americans, the Exclusionary Rule has been a part of accepted Supreme Court jurisprudence for as long as they have been old enough to care. Unless you were born in the 40s or earlier, you have probably only known a time when the Exclusionary Rule is the Rule. Heck, most Americans probably believe the Exclusionary Rule is actually a part of the Constitution. Like any rule or law, if around long enough, it becomes a part of the peoples’ subconscious – it becomes the “right” rule simply because it is the familiar rule.
I would not want the Roberts Court to simply do away with the Exclusionary Rule at this time, but I would like to see some real debate as to its effectiveness and its alternatives.
- A very reasoned post on the subject at The Cardozo Jurist, with an especially good take on the Herring case liberals seem to think strikes the death knell to the Exclusionary Rule.
- Volokh has a related post on the Exclusionary Rule from two weeks ago, although it is not specifically on the issues addressed above. Nonetheless, it is worth the read.
- Big Bend Bikers for Freedom discusses the issues I have discussed above, but takes the more hysterical New York Times approach.
- The Life After Innocence Project also takes the more hysterical view, but goes one step further by demonizing those who think differently. Rather than discuss the pros and cons of both sides of the debate (as I have tried to do here), the author simply labels those on my side of the debate as those “attempts by certain opponents of the exclusionary rule to disable the few constitutional safeguards we have against these police practices.” Really? Do they really think people simply want to discard the Constitution or remove its safeguards? Why does it not dawn on people that those who disagree might simply feel that there are different, or better, ways to enforce the Constitution? Unfortunately, debate in this country seems to digress to these types of arguments all too frequently. The other guy is always “evil” and out to do away with good things “just because.” I left a lengthy comment, but it has been under “moderation” for 12 hours or so.