Eroding the Exclusionary Rule

Why the Supreme Court got it wrong in Herring v. United States

Radley Balko | January 28, 2009

In the recent Supreme Court case Herring v. United States, the majority determined that courts may not throw out evidence in cases where the police may have violated a suspect's Fourth Amendment rights due to "isolated negligence." The case represents further erosion of the exclusionary rule, a doctrine dating back to 1914 (with some weaker antecedents in English law) holding that evidence obtained through unconstitutional police procedures can't be used against a defendant at trial.

Conservatives have long despised the exclusionary rule, arguing that it protects the guilty (by disallowing evidence of their guilt at trial) and does little to protect the innocent (those who've done nothing wrong aren't going to be prosecuted). There's some merit to those arguments. It is an imperfect remedy to search and seizure violations.

The problem is that right now, it's really the only remedy. If police officers can make a case against someone using evidence they obtained illegally, what's to stop them from disregarding the Fourth Amendment entirely?

There are multiple problems with suing police. It's of course unlikely that anyone convicted with tainted evidence is going to sue. That leaves those wrongly searched in cases where police didn't find anything incriminating, a group of people likely to already feel intimidated, and who may not recover enough in damages to merit the time and effort of a lawsuit.

The more direct hurdle to the use of lawsuits to halt police misconduct is that as government employees, the police have qualified immunity from such suits. They're effectively shielded from liability—even if they've done something unlawful—unless you can show they've violated "clearly established law," as determined by a reasonable person. Government employees need only to have the basic understanding of civil rights that the average, reasonable person might have, not the sort of specialized knowledge private professionals generally have about their work. So a police officer who shoots someone without provocation would be liable, but a police officer who takes illegal shortcuts to get a warrant to search your home probably wouldn't.

You needn't have sympathy for the sketchy defendants in Fourth Amendment cases to be concerned about what's going on here. If you take away the exclusionary rule and you make it increasingly difficult to sue police officers for search and seizure violations, the Fourth Amendment carries all the literal weight of the parchment on which it's written. Without an enforcement mechanism, it's meaningless.

Some—most notably Supreme Court Justice Antonin Scalia—have argued that the Exclusionary Rule is no longer necessary, because there's a "new professionalism" that's been sweeping police departments over the last 20 or so years. Scalia first made that argument in the 2006 case Hudson v. Michigan. He may be right that police today are more cognizant of civil liberties than they were in the 1950s or 1960s. But "better" doesn't necessarily equate to "acceptable." The "Blue Wall of Silence"—the code by which police officers refuse to testify against one another—hasn't exactly broken down. In just the last year, police departments in Atlanta, Oakland, and Chesapeake, Va., have come under fire for taking shortcuts on search warrants, including outright lying.

Dr. Sam Walker, one criminologist Scalia referenced in his Hudson opinion, actually took to the pages of The Los Angeles Times to denounce how Scalia had interpreted his work. Yes, Walker wrote, police departments have gotten more professional over the years, but it's because the Supreme Court strengthened constitutional protections for criminal suspects in the 1960s and 70s. To use his conclusions to then argue that those protections are no longer necessary, as Scalia did, was disingenuous. Justice Ruth Bader Ginsberg made a similar argument in her dissent in the Herring case, writing that, "It has been asserted that police departments have become sufficiently 'professional' that they do not need external deterrence to avoid Fourth Amendment violations. But professionalism is a sign of the exclusionary rule's efficacy—not of its superfluity."

In response to the Court's ruling in Herring, University of Tennessee law professor Glenn Reynolds proposed a grand bargain to the law-and-order crowd: He'd give up the exclusionary rule, if they'd work with him to get rid of qualified immunity.

It's not a bad deal. In fact, it would be a good idea to get rid of qualified immunity for all government employees. They idea that getting a government paycheck somehow inoculates you from liability should you harm someone while on the job is antithetical to the principle of equality under the law. If anything, the government should be held to a higher standard.

I'd add, though, that opening police officers up to lawsuits probably isn't enough. There's an interesting dichotomy on the right when it comes to the police. The same philosophy that distrusts the government when it manifests itself as bureaucrats and regulators (a sentiment I share) seems to put an unhealthy amount of trust in the government employees we call police officers. The sentiment among many on the right is that the police need less supervision, less watch-dogging, and less second-guessing than other government emlpoyees. This is particularly odd given that, compared to your average bureaucrat, police officers are entrusted with an extraordinary amount of power, at least when it comes to the power they wield over the people with whom they come into contact. They are as susceptible to the same trappings of power as any scorned EPA regulator or grudge-bearing city council member, only they're also entrusted with the power to detain, use force, and kill.

My point is not that police officers on an individual level are terrible people, or more prone to misbehavior than your typical government employee or your typical citizen. The problem comes when the weaknesses that are in all of us are coupled with a license to use force, authority, and the sense that one is above the law. Philip Zimbardo's famous Stanford prison experiments showed that it doesn't matter who you put in that position, the results can be disastrous without the proper controls. We can't do anything about the first element, and the second and third are by definition part of policing. It's that last one that we can change.

To make matters worse, for the last 30 years politicians have trumpeted a "get tough on crime" message that has resulted in measuring police departments and prosecutors primarily by how many people they're able to arrest and toss in jail. There's a huge push for arrests, and a de-emphasis on civil liberties. It isn't difficult to see the sorts of incentives that sets up.

If we're going to get rid of the exclusionary rule, it needs to be replaced not only with alternative punitive measures, but also with a wholesale change in mindset that emphasizes the "keeping the peace" approach to policing, as opposed to merely racking up arrest statistics.

I don't see either happening any time soon.

Radley Balko is a senior editor at Reason magazine. This article originally appeared at FoxNews.com.

Comments

|1.28.09 @ 3:32PM|#

It is not needed because we are at war with drugs and it gets in the way. When the constitution was written, they didn't have a war on drugs that needed to be fought. There is a new professionalism that makes it unnecessary at best and downright interfering at the worstest.

Joe|1.28.09 @ 3:34PM|#

\psi = A e^{ikx} + B e ^{-ikx} \;\;\;\;\;\; E = \frac{k^2 \hbar^2}{2m}

Geotpf|1.28.09 @ 3:39PM|#

The first two comments are a super-troll and a math equation. I predict a massively random and capricious thread ahead-kind of like Supreme Court rulings in the past decade or so.

Felix Frankfurter|1.28.09 @ 3:41PM|#

"if police officers can make a case against someone using evidence they obtained illegally, what's to stop them from disregarding the Fourth Amendment entirely?"

Stare Decisis.

Alan Vanneman|1.28.09 @ 3:41PM|#

Um, is Juanita on drugs? And is Joe on joe?

Otherwise, Radley needs to understand the "new" conservatism, first enunciated by Ronald Reagan: all bureaucrats are bad, except those carrying guns. No matter how much Ronnie squawked about government being the problem, his budgets always gave increases to those feds lucky enough to be packing a piece.

|1.28.09 @ 3:42PM|#

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Is to feel completely at ease.
I run my fingers through her hair,
And it smells of a warm breeze.

We stand in a timeless moment,
Together in a tight embrace.
Motionless in the night's air,
Observing every detail of her face.

The strength of her beauty,
Has command over my will
We spend every moment we can,
And yet, can never get our fill.

Her personality seals the deal.
I shall remain with her forever.
I make a pact with my self this night,
To never lose this treasure.

E-mail me, you internet goddess. Only I can make your life complete.

|1.28.09 @ 3:57PM|#

Has there ever been a way to enforce the 4th Amendment other than the exclusionary rule? Other than the laughable "new professionalism," is there any other assurance that cops won't disregard the 4th?

Paul|1.28.09 @ 3:58PM|#

No matter how much Ronnie squawked about government being the problem, his budgets always gave increases to those feds lucky enough to be packing a piece.

True enough. And Democrats worked tirelessly to do the same thing a-la Clinton, and make sure none of us "civilians" could carry a piece. Because "only the state should have guns" goes the tired (and thankfully discredited) argument.

Funny how that works.

|1.28.09 @ 4:07PM|#

Other than the laughable "new professionalism," is there any other assurance that cops won't disregard the 4th?

Civil Suits -- right? That's the theory right? That the remedy for civil rights violations is to allow you to sue in civil court.

Its the perfect remedy too, cuz if I remember correctly, at their discrection, states can sue criminals to recoup the cost of incarcerating you.

|1.28.09 @ 4:22PM|#

The fairer solution is to hold the officer liable for the illegal search.

But that would offend the immunity crowd...

|1.28.09 @ 4:32PM|#

Mad props for the auto-ad:

"Justice Pays.

Get the education you need tp (sic) advance your law enforcement career."

|1.28.09 @ 4:32PM|#

The same philosophy that distrusts the government when it manifests itself as bureaucrats and regulators

Radley, you know I love every ASCII character that you type, but please STOP PERPETUATING THIS MYTH. Where the fuck can you find ANY evidence that the right is anything but the willing whore of government bureaucrats and regulators. They fucking love em. The sadistic sons of bitches squeal with delight every time the iron fist of government gets shoved up their ass.

THERE IS NO DISTRUST OF GOVERNMENT ON THE RIGHT!

T|1.28.09 @ 4:36PM|#

what's to stop them from disregarding the Fourth Amendment entirely?

The correct answer is "nothing", Mr. Balko. Those pesky rights people have. Why, if you're not doing anything wrong you have nothing to fear from the nice officer.

Shit. I'm having issues with the legal system today, so take any suggestions I may make involving gasoline, guns, and rope in the jesting spirit in which I offer them. Don't construe them as actual incitement to shoot cops and judges, string up the bodies, and set courthouses on fire. Jokes, people, jokes.

|1.28.09 @ 5:00PM|#

"Civil Suits -- right? That's the theory right? That the remedy for civil rights violations is to allow you to sue in civil court."

They have qualified immunity.

Ben1|1.28.09 @ 5:17PM|#

Bloody hell.

The constitution has no teeth. That's the problem with the 4th amendment, and every other amendment. The government can ignore, adjust, twist, invert, and outright contradict anything and everything in the constitution because nothing, and no one, can, or will, hold them to the obligation they incur by acting as an agent of the government the constitution authorizes.

The inversion of the commerce clause; the taking of the power to "re-interpret" the constitution by the judiciary (nothing like that is authorized in article III, you'll note); the watering down (or outright irrelevance) of the 1st, 2nd, 4th, 5th, 6th, 8th, 9th and 10th amendments; the implementation of ex post facto laws; the spread of government deeply into areas it is not authorized to exercise power in...

All these things can be traced to the fact that the swearing of the oath to the constitution has no follow up, no teeth, no oomph.

Any father can tell you what happens if you tell a kid "no", then you don't punish them when they do it anyway. That's the root of some real family problems. And it is the precise same problem we face today.

This lack of teeth is the very worst oversight in the constitution, by far. It carried fertile seeds of the republics destruction and replacement with a distributed dictatorship. Look around you; the signs are everywhere.

And unlike governments of the past, this one truly has unstoppable power. Standing in front of a tank will simply get you squished. The republic is dead. The only reason complaining about it is tolerated is because it is literally harmless to the government.

|1.28.09 @ 5:21PM|#

Juanita is right! Drugs and mind altering substances have only been around for a few years, certainly not when the constitution and bill of rights was ratified. And Marijuana is so deadly that even its odor can cause instant insanity and certain death! A person's body is owned by the state, and that state must prevent the person from shitting on its alter and spray painting the walls at all costs! And what about the children? Do we not want to instill in them the ideals that they will be taken care of by the state from cradle to grave, that they are not intelligent enough and responsible enough to make their own decisions? This can ONLY be done with 24/7 surveillance and the ability of the police to break in and save you from yourself, whenever they want. Geez, what's wrong with youse guys? Get with the program!

|1.28.09 @ 5:53PM|#

if police officers can make a case against someone using evidence they obtained illegally, what's to stop them from disregarding the Fourth Amendment entirely?

I'd trade the exclusionary rule for getting rid of immunity, which I think is worse.

The exclusionary rule is one way to address the issue, but it ultimately only gives you a recourse if you're guilty. If you're completely innocent of what they wanted to pin on you, the exclusionary rule doesn't do jack for you. Now if they think you're guilty they probably won't search you thanks to the exclusionary rule, but it does nothing in cases where cops just want to harass or strike a little fear into people.

|1.28.09 @ 6:34PM|#

The only reason we have an exclusionary rule is because cops of immunity. Take away that immunity throw a few of them into the general population at the state penn, and the rest will start behaving.

Keep the evidence, but send the cops to jail. Problem solved.

Alice Bowie|1.28.09 @ 6:44PM|#

Brandybuck i Most definitely agree.

However, only if it can be proven that the officers acted in bad faith.

This is why your idea probably won't work...cops will set up a procedure to make sure that we could never prove bad faith.

So, as much as I like ur ideea...

Keep the Exclusionary rule, forgive defendant and officer when officer acts in good faith.
Remove immunity of ALL officers and procecutors that are proven to act in bad faith.

|1.28.09 @ 7:29PM|#

Bye, bye fourth amendment, I'll miss you!

|1.28.09 @ 10:37PM|#

I think the rule makes sense if you view prosecutors as an arm of the people doing work for the people. Therefore when they screw up, they screw up in the name of the people and the people deserve to be punished by the evidence being excluded.

I know, I know, the concept of government being of the people, for the people, by the people died a long time ago.

Here's my conservative take on the exclusionary rule. Do you job right and you don't have to worry about it.

Alice Bowie|1.28.09 @ 10:53PM|#

The true conservative take on the exclusionary rule is let's go after those we don't like with impunity and no respect for rights and the rule of law.

|1.28.09 @ 11:14PM|#

"I don't see either happening any time soon."

I share your pessimism, but it's critical that the concept of (qualified or unqualified) immunity be stricken from our lexicon. In a nation where *everyone* is equal under the law, prosecutions for violations of constitutional rights ought to fall heaviest on those who pledge to defend them. That includes government executives, legislators, bureaucrats, prosecutors and - yes - cops.

That there is cowardice in the legislative halls doesn't excuse the courts loosening whatever enforcement exists in defense of the Bill of Rights.

Ben1|1.28.09 @ 11:56PM|#

> In a nation where *everyone* is equal under the law,

(stares... blinks...)

What nation would that be, may I ask?

You writing some fiction, is that it?

|1.29.09 @ 8:03AM|#

Of course, if you gat the cops out of the business of enforcing and pursuing various moral crusades (the War On Drugs, DUI checkpoints, anti-tobacco nitwittery, anti-sodomy laws, and Gods know what else), a lot of this problem goes away......


The problem is that that would tend to reduce the government to a provider of selected services, rather than the All Knowing, All Powerful sMother State. Politicians would HATE that. All politicians; both nominally Left and supposedly Right.

That, by the way, is what is wrong with the Conservative movement, Radley; where the rubber meets the road it is implemented by politicians, and no politicians is REALLY in favor of reducing his own importance.

If the Libertarians start winning elections, they will fall to this too.

geniusiknowit|1.29.09 @ 12:54PM|#

Friendly FYI - Invoking the results of the unscientific Stanford prison experiments does not help the argument.

Frank|1.29.09 @ 1:26PM|#

As a scientist I have great frustration with the exclusionary rule. Evidence is data, and that should not be lightly thrown away. If the cops procured this data in an illegal manner, they should be prosecuted. If they came into your house without a warrant shouldn't that be treated as Breaking and Entering?

Ben1|1.29.09 @ 2:36PM|#

> If they came into your house without
> a warrant shouldn't that be treated
> as Breaking and Entering?

...also assault with (a) deadly weapon(s), and any number of similar thug-oriented crimes.

But it isn't going to happen.

> Evidence is data, and that
> should not be lightly thrown
> away.

Neither should the 4th amendment. But they've done it anyway.

Ian|1.29.09 @ 5:19PM|#

Ben (yesterday at 5:17) is exactly right (though I'm not going to go so far as 'the republic is dead'). The limitations imposed on the exclusionary rule are secondary to the limitations imposed on the fourth amendment more generally by an over-reaching government. As one of my favorite law school profs used to say: "Do you know what one of the Framers would have done if a cop had pulled over his carriage intent on searching it? He would have challenged the cop to a duel and someone would have died." Of course, we're now "enlightened" enough to know that every man's home is no longer his castle.

Michael Ejercito|1.29.09 @ 8:01PM|#

Of course, if you gat the cops out of the business of enforcing and pursuing various moral crusades (the War On Drugs, DUI checkpoints, anti-tobacco nitwittery, anti-sodomy laws, and Gods know what else), a lot of this problem goes away......

What is wrong with DUI checkpoints?

Ben1|1.30.09 @ 4:33AM|#

> What is wrong with DUI checkpoints?

Seriously?

The same thing that is wrong with searching you for any other purpose, absent probable cause.

If you're driving and you're visibly unable to control your vehicle, then that very lack of control is probable cause. At that point, someone should probably detain you and call for a warrant to search you for alcohol and/or otherwise determine why it is you weren't following the rules of the road.

A checkpoint stops you without you having demonstrated any fault -- no probable cause -- and that's not authorized by any sane reading of the constitution.

If they want legitimate authority to do that, they need to amend the constitution to get it. Otherwise, they'll have to make do with unauthorized use of power. And, of course, they do exactly that.

On the one hand, we have liberty -- the freedom to go about our business unmolested; on the other, we have safety, or perhaps it would be more accurate to say we have the illusion or unfulfilled promise of safety, implemented by randomly checking to see if some people are doing everything right.

The founders intended that you have the former, and wrote the constitution with that in mind. Our current government advocates the latter, and ignores the constitution in order that they may force it upon you.