Weakly Standard pries your gun from your cold, dead hand

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In the Weekly Standard, one William Tucker gives a strong argument against the exclusionary rule, under which improperly obtained evidence can be ruled out of bounds at a trial. It's an interesting argument beefed up with plentiful information, including the rule's unexpected connection to homicidal boxing promoter Don King:

On May 23, 1957, three Cleveland police officers came to the door of Dollree Mapp, who was suspected of harboring a suspect in a bombing case. (The bomb had gone off on the front porch of Don King's house–a warning to the future boxing promoter from rivals in the numbers racket.) Mapp called her lawyer, who told her not to allow the police to enter without a warrant.

The officers departed. Three hours later they returned with reinforcements, waving a piece of paper in front of her face and saying it was a warrant (whether it was remains in dispute). Mapp grabbed the paper and stuffed it in her dress. The police wrestled it back and put her in handcuffs. Her lawyer arrived but was not allowed to speak to her or enter the house. For the next few hours, police ransacked Mapp's home but didn't find their fugitive. In the basement, however, they did discover a suitcase that Mapp said belonged to a former tenant. Inside were four pamphlets, a couple of photographs, and a pencil doodling alleged to be obscene. Mapp was convicted of possession of pornographic material and sentenced to two to seven years in prison.

Drawing on such contemporary monsters as 20th hijacker Zacarias Moussaoui, baby torturer Dr. Theodore Frank, and annoying legal hairsplitter Alan Dershowitz, Tucker comes close to proving his point. After all, it was one of the greatest legal minds of our time, Judge Lance Ito, who favored admitting some controversial evidence at the OJ trial on the grounds that the purpose of a court was "to find out the truth." But then Tucker comes up with a hypothetical that actually demonstrates why we need the exclusionary rule in the first place:

If the warrant specifies a 9mm Smith & Wesson and the gun turns out to be a .357 Magnum, is it admissible?

Why stop with guns? I mean, if the cops find a DNA sample in your home, does it really matter whether it's the exact same one they're looking for? If they're looking for a stolen DVD player, who but a nitpicker would complain if the DVD player you have isn't the stolen one?

One strong argument for doing away with the exclusionary rule entirely (rather than relying on "good faith" exemptions, as we do now) is that the proper remedy for a Fourth Amendment violation is a civil suit. When your .357 is being sold at a police auction and you're rotting in prison, I'm sure you'll take comfort in knowing that you're another of about two million jailbirds who while away their afternoons by writing petitions bellyaching about how they were framed.

I took a potshot at the "no-knock" ruling in June, and Cathy Young made a strong case for including the exclusionary rule.

Thanks to David Schaefer for the link.

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  1. Once upon a time I thought there shouldn’t be such a thing as inadmissable evidence. If you borke the law and it was provable, why should you be let free on a technicality?

    But then I wondered who would punish those cops who broke the law to find such evidence. I still haven’t come up with an answer as to who would prosecute the cops. The DA clearly has a conflict of interest after all.

    In the absence of a credible penalty against 4th amendment (amongst others) abusers, that amendment would be dead.

    Ok, ok, the 4th amendment is already dead thanks to SCOTUS members who don’t like the Constitution and think that they are somehow lawmakers….

  2. The arguements against the exclusionary rule have merit. However, has anyone really thought out the use of civil suits as an alternative?
    If the evidence found proves you guilty. You wind up in jail as a result, but you’re supposed to be there, you’re guilty. So far so good, the bad guy is in jail. But what if it nothing is found? What are your damages? A few minutes lost time? As an individual you would clearly have no standing in court. Do you really want to wait for enough police violations for a class action suit?
    Look where that went with DWI stops.

  3. Tucker also glosses over the exclusionary rule’s deterrent value. Qualified immunity makes it virtually impossible to sue a police officer for misconduct. And as Jeffiek points out, victims of an illegal search aren’t going to suffer enough in terms of damages to go to the trouble of a lawsuit (unless, of course, the search leads to violence).

    So there’s really nothing left to prop up the Fourth Amendment. An aggressively applied exclusionary rule making it clear to cops that bad searches will result in suppressed evidence would make shortcuts through the warrant process, ultimately, a waste of their time.

    Tucker also lost me when he cited Scalia’s assertion that modern police departments are less likely to make mistakes because they’re allegedly more professional and have instituted reforms and measures that make cops more accountable. This is pretty clearly wishful thinking. Cops who screw up are still rarely held accounable, and when they are, it’s only in th emost egregious cases, and only have considerable public pressure. Even then (see the Culosi case in Fairfax, VA) they can stall for months.

    Not to mention that one of the scholars Scalia cited in making his point about this “new professionalism” wrote an op-ed in the LA Times a week after Hudson expressing his shock at how Scalia had misappropriated his work.

    The exclusionary rule isn’t perfect. But until lawmakers are ready to step forward and pass laws making police more accountable and more subject to lawsuits (which is never going to happen), it’s all we have.

    See also Tim Lynch’s paper on the exclusionary rule:

    http://www.cato.org/pub_display.php?pub_id=1178

  4. Yep, I agree that the exclusionary rule, while hardly ideal, is better than any alternative than I can think of. It might not be better in principle, but it’s certainly better in practice.

  5. uh, what would be ideal in principle? Because in practice, subjecting law enforcement officials to lawsuits yields one of two results:

    1) The officer is defended by the employing agency (the State), whereby we all lose out, for one, because taxpayer money is going to go to his defense. Also, only the rich (i.e. people who probably aren’t going to be victims of violations of the exclusionary rule in the first place) will be the only ones able to afford a lawsuit against the State anyway.

    2) You can personally sue the officer, but that doesn’t mean he isn’t back on the job within the week. Additionally, you’re not going to get much in justice if he’s broke.

    Basically, rigorous enforcement of the exclusionary rule is the most egalitarian and just method of insuring against bad searches. I don’t care if you find a dead nun in some guy’s closet on “good faith”; it needs to be tossed on principle.

  6. “One strong argument for doing away with the exclusionary rule entirely (rather than relying on “good faith” exemptions, as we do now) is that the proper remedy for a Fourth Amendment violation is a civil suit.”

    I find it funny that it’s called a “proper” remedy when it has yet to proof it’s a remedy at all.

  7. Are you serious? Without the exclusionary rule the 4th Amendment is absolutely meaningless. A civil suit does NOT remedy a constitutional violation. Just look at the present state of Section 1983 law. Everything a government actor does is immune… sovereign immunity, official immunity, qualified immunity, thought-he-was-immune immunity.

    My solution is to charge the government official (i.e. police officer) with the crime of Constitutional Violation, and the punishment should be the same as the punishment the person convicted due to the 4th Amendment violation gets, except in the case of the death penalty; in which case the officer gets life.

    So, if an officer performs an illegal search and seizure, garnering evidence which leads to a drug conviction of 70 years, the officer serves 70 years too. That way the evidence is not excluded and the constitution is not raped. Win win. And yes I realize officers will never violate the Constitution if this were the case. Exactly the point.

    If the Constitituion is the supreme law of the land, it should be a crime to violate it. And violating it for the purpose of throwing someone into prison is the worst excuse for doing so.

  8. Are you serious? Without the exclusionary rule the 4th Amendment is absolutely meaningless. A civil suit does NOT remedy a constitutional violation. Just look at the present state of Section 1983 law. Everything a government actor does is immune… sovereign immunity, official immunity, qualified immunity, thought-he-was-immune immunity.

    My solution is to charge the government official (i.e. police officer) with the crime of Constitutional Violation, and the punishment should be the same as the punishment the person convicted due to the 4th Amendment violation gets, except in the case of the death penalty; in which case the officer gets life.

    So, if an officer performs an illegal search and seizure, garnering evidence which leads to a drug conviction of 70 years, the officer serves 70 years too. That way the evidence is not excluded and the constitution is not raped. Win win. And yes I realize officers will never violate the Constitution if this were the case. Exactly the point.

    If the Constitituion is the supreme law of the land, it should be a crime to violate it. And violating it for the purpose of throwing someone into prison is the worst excuse for doing so.

  9. nice histrionic excess, bruce. if your suggestion ever became law i can guarantee you that no police officer in his right mind would ever conduct any search. if you could be thrown in jail for what now would lead to exclusion, why search at all? ever? it IS next to impossible to sue cops for INACTION (as the SCOTUS has ruled, cops have no duty to particular individuals to protect them, etc.) so your “cure” would basically result in a society where no cop would ever dare to consider community caretaking, exigency, hot pursuit, or any other warrant exceptions. that’s a cure that is FAR worse than the problem. the exclusionary rule is actually a pretty decent compromise. many nations, the UK for example, get along just fine w/o it, but it’s a decent compromise – as long as (imo) one retains principles involving ‘standing’ (generally speaking, evidence against party A will not be excluded if party b’s rights were violated, since he has no standing)

    society has to strike a balance between deterring future incidents of police misconduct (which is what the exclusionary rule does) vs. the authority of police to bring lawbreakers to justice.

    your ‘solution’ would tilt the scales ridiculously against the LE field

  10. The entire purpose of modern American law is to frame every legal argument as my 10 year old son does. Come up with some obscure technicality or excuse to avoid getting at the truth.

    I’ll sign on for the exclusionary rule when the government offers the same protection to taxpayers as it does to criminals. Let’s get the ACLU on that fargin’ band wagon.

  11. Oh yeah, and as anyone on the margins of the culture can attest to, the exclusionary rule only applies when the crime is serious.

    If you’re the chick who gets popped during an illegal vehicle search and your blind date has blow under the front seat, you’re going to spend the rest of the weekend in jail, LA County is going to take a week to release you after the judge releases you on an OR (and they’re going to dump your skinny white ass on the street in Watts at 2:00 AM). You’re going to a drug diversion program because you’re scared shitless to argue over it because if you don’t take the deal, you can’t make the bail on a drug charge and you need to get back to work so your kids can eat.

    And the exclusionary rule doesn’t mean a got dam thing.

    That’s reality.

  12. My main beef with the exclusionary rule is that it only protects the guilty. If some overzealous police officer were to ransack my house looking for a meth-manufacturing operation, he’d find nothing because I’m not running one. Because I’m not running one, there’d be no evidence to exclude, and thus I’d get no compensation or renumeration for the violation of my privacy.

  13. Aric: you are quite wrong. The exclusionary rule protects the innocent by preventing the cops from executing endless, harassing, bullshit searches on a “hunch.” You are protected because the cops know that if they find a dead hooker in your basement, you’ll get off scot free and there’s not a damned thing they can do about it. Of course, you don’t have a dead hooker in your basement. But the rule prevents the cops from seeing for themselves any time they feel like it.

    Scalia is a fool and has been for some time. The reason police are more “professional” is because the courts have been persistent about sanctioning misconduct. The exclusionary rule is one of the tools they use. Get rid of Miranda and the exclusionary rule and we’ll be back to break-ins, planted evidence, and interrogation-room beatings as a matter of routine.

  14. So here’s a dilemma: what does one do when one reads a legal analysis whose very first sentence is completely 100% wrong? Does one bother to read further? Or does one write it off as a complete waste of time? From the article:

    In June, the Supreme Court decided that Detroit police did not violate the Fourth Amendment rights of a drug dealer named Booker Hudson when they entered his home in August 1998 only five seconds after announcing their presence at his door.

    They did, of course, absolutely no such thing. They did not say that Hudson’s rights were not violated. In fact, that issue was not even contested. The only thing the Court held was that exclusion was not the proper remedy for that violation.

  15. james, you are an expert at excluding the middle – not

    getting rid of miranda would not mean backroom beatings. all miranda twisting aside, what miranda means is that if you want testimonial evidence to be admissible as direct evidence, it must be post-waiver IF both prongs – custody and interrogation are present.

    it does not follow that if the miranda requirement was done away with, that this would = BEATINGS.

    beatings are just as excludable (and prosecutable) with or without miranda.

    and a beating, post-miranda, that results in a confession is still inadmissible.

    this is just total rubbish

    regardless, of whether or not miranda has a good RESULT, it is clearly (imo)_ a poor constitutional law decision.

    that’s because it is clear that you have the right to remain silent. that’s in the constitution

    the idea that government must verbally REMIND you of this before questioning you in a custodial situation is NOT a constitutional requirement. miranda v. arizona notwithstanding

    there is nothing to prevent a state legislature from passing a miranda requirement, or for a state constitution to be amended to require it

    but the argument that it is somehow magically present in the constittuion is absurd

  16. If the cops did their job by the book, they would not have to worry about the exclusionary rule.

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