Friday, February 22, 2008


The Supreme Court on the exclusionary rule

The US Supreme Court has agreed to hear a case that focuses on the exclusion of evidence that was obtained improperly. In this case, in particular, there’s a real question about the application of the exclusionary rule: it’s there to provide a deterrent to police abuse, and here they thought they were acting properly, so there isn’t a question of deterrence:

In this instance, officers in Coffee County, Ala., arrested a man, Bennie Dean Herring, in 2004 after being informed by the Sheriff’s Department in neighboring Dale County that he was the subject of an outstanding warrant. But the warrant, although still in Dale County’s computerized database, had in fact been withdrawn five months earlier. In the 10 or 15 minutes it took for the Dale County officers to realize their error, the Coffee County officers had already stopped Mr. Herring, handcuffed him, and searched him and his truck, finding methamphetamine and an unloaded pistol.

The argument for exclusion (of the meth and the gun) is that there wasn’t really cause to stop Mr Herring and to perform the search, and if they hadn’t been misinformed about the warrant, they wouldn’t have done so, and wouldn’t have found the items. The argument for giving the police an exception here is that they “acted in good faith” — they thought they had cause, and the Coffee County officers should not be penalized for the error in Dale County.

Given the current makeup of the Supreme Court, it would surprise me if they don’t uphold the exception that was granted by the lower courts. Beyond that, I expect them to use their opinions in this case to expand the scope of exceptions, and thus to tighten up the usage of the exclusionary rule.

And that gives me mixed feelings, because I’ve always had something of a love/hate relationship with the exclusionary rule. A part of me has always thought that valid evidence is valid evidence, and it shouldn’t be excluded even if it was found improperly. I’ve always wondered if there weren’t other deterrents we could come up with to the abuse of the system by the authorities.

But while I’ve thought that, I’ve looked at situations like the Rodney King incident, which showed that trying to hold the police legally liable for their overstepping boundaries is doomed to fail. And if the authorities can’t be held accountable, the only remedy we have is to throw out the evidence, and perhaps the whole case.

Back on the other side again, though, I have to question how much it really deters the abuse. How much abuse do they get away with anyway? And how many guilty criminals get convicted as a result? Do the police sometimes think it’s worth the risk, if they have no other way to catch the bad guy? The end doesn’t justify the means, but, again, isn’t there a way to hold back abuse that at the same time is more effective at it — less open to sneaking by — and doesn’t let guilty criminals go?

And for one more “on the other hand”, excluding evidence can result in a chain of exclusions that sometimes completely foils several cases, even when other evidence exists. Suppose the police kick your door in and find illegal drugs. Having found that, they ask around and find out who your friends are, and start following your friends. They catch a couple of your friends selling drugs to twelve-year-olds. They bang all of you up, but....

Your lawyer gets the evidence against you — the drugs they found at your house — excluded. You friends’ lawyers then argue that if the police hadn’t found those drugs, they never would have investigated your friends, and they never would have caught your friends selling drugs to the kids. That evidence, which depends on excluded evidence, is also excluded. And this can cascade and eliminate all or most of the evidence in a series of prosecutions, tossing them all out of court.

So it’s a difficult system to deal with, and I don’t know what the right answer is. I do know that I don’t want the police to be given free rein to violate people’s rights. But I’m not sure that the exclusionary rule, as implemented, is the right solution.

In any case, we’ll soon see what The Nine have to say about it.


Lisa said...

Like you I don't know about the whole system. But a "good faith" exception will create incentives for ignorance that I don't think we want. How many software companies have a policy of remaining ignorant about what patents exist, so that their engineers can write code that may enfringe, or participate openly in the IETF without disclosing intellectual property, all in good faith?

The Ridger, FCD said...

Is this the "ends justify means" argument?

Cops - and I'm related to one I'm very fond of - have power that needs to be checked. Sure, some criminals will go free, but that's the price we pay for the legal system we have - the one where it takes more than the police's say-so to detain someone.

And Lisa's point is good, too.