Exclusionary Rule Further Eroded
Is it reasonable for a police officer not to know the law? The United States Supreme Court recently said yes, sometimes. What’s more, the court provided an incentive for police to adopt expansive interpretations of the law until a court tells them otherwise.
In a December 15, 2014 decision, the court decided prosecutors can use evidence in a criminal trial even if it was seized after an illegal traffic stop based on an officer’s faulty legal presumptions.
The decision further erodes an exclusionary rule that otherwise protects Americans from unreasonable search and seizure. The exclusionary rule says ill-gotten evidence must be excluded from criminal proceedings.
Since the court established the exclusionary rule, subsequent courts have repeatedly carved out what are known as good faith exceptions. Earlier exceptions allowed evidence to stand when an illegal search was based on factual errors. The latest decision, Heien v. North Carolina 574 U.S. __ (2014), extended the good faith exception to evidence gathered during investigations based on legal errors.
The US Supreme Court has justified good faith exceptions to the exclusionary rule by asserting reasonable errors do not violate Fourth Amendment protections against unreasonable searches and seizures. The court’s reasoning is based on flawed logic.
Ignorance of the Law is a Good Excuse
As this latest convolution in faith-based reasoning winded its way through North Carolina courts, a dissenting North Carolina Supreme Court judge noted the irony in jurisprudence that tells citizens ignorance of the law is no excuse while allowing police to be ignorant of the law.
The facts in Heien v. North Carolina were almost routine. A cop conducted a traffic stop on the basis of a faulty brake light. A passenger who owned the vehicle consented to a search. The cop found cocaine.
Problem was, nothing in North Carolina law prohibits driving with only one brake light. At least that is what the North Carolina Court of Appeals concluded after a carefully review of the motor vehicle code.
Because there was no legal reason to stop the driver, the state appeals court at first concluded:
“[T]he justification for the stop was objectively unreasonable, and the stop violated Defendant‟s Fourth Amendment rights.”
The US Supreme Court disagreed. The motor vehicle code was vague, the court noted. With no precedent interpreting the law, it was objectively reasonable for an officer to believe a single malfunctioning brake light was a violation of law, the Supreme Court decided.
The Right of the People to be Secure – Sometimes
To understand how activist judges’ good-faith exceptions have undermined fundamental rights guaranteed by both the U.S. and Oklahoma constitutions, we need to review the basis of the exclusionary rule. According to the Oklahoma constitution:
“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized.”
The Bill of Rights in the United States’ Constitution includes virtually identical language. For better or worse, the right stood with little judicial interpretation until the 20th Century.
The U.S. Supreme Court’s first strong statement against illegal search and seizure involved mailed lottery tickets. In Weeks v. United States, 232 U.S. 383 (1914) the court said papers seized without a warrant could not be used as evidence. The court stated:
“[T]he efforts of the courts and their officials to bring the guilty to punishment… are not to be aided by the sacrifice of those great principles established be years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land.”
A few years later, the court in Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1921) extended the exclusionary rule with a precedent known as the “fruit of the poisonous tree doctrine.”
In a tax evasion case, prosecutors argued copies of illegally seized papers were admissible even though the actual papers were not. The U.S. Supreme Court ruled against the prosecution. Justice Oliver Wendell Holmes wrote for the majority.
To allow the government to rely on the ill-gotten evidence “reduces the Fourth Amendment to a form of words,” Holmes wrote.
No Right of Your Family to be Secure
It did not take the U.S. court long to cloud the clear vision of constitutional protections Holmes articulated.
Documents obtained from a thief can be used as evidence because the Fourth Amendment only protects against searches by the government, the U.S. Supreme Court decided in Burdeau v. McDowell, 256 U.S. 465 (1921).
Evidence seized in an unwarranted search of a relative’s home can be introduced at trial because the defendant lacks standing to challenge a violation of the relative’s rights, the court said in United States v. Jeffers 342 U.S. 48 (1951). The relative likewise lacks standing to challenge a violation of the defendant’s rights.
Then came 1984. In Nix v. Williams, 467 U.S. 431 (1984), the court minted the “inevitable discovery” doctrine. Evidence that police would have eventually found anyway by legal means could be admitted even if it was obtained in violation of the defendant’s rights.
In United States v. Leon, 468 U.S. 897 (1984) the court crafted the dubious good-faith exception. In Leon, a search warrant was later ruled invalid because police lacked probable cause to get the warrant. Nonetheless, because they believed in “good faith” that they had a valid warrant, the drugs they seized could be used as evidence.
Unraveling the Bill of Rights
The Leon court supplanted the age-old language of the constitution with a thread of flawed logic spun by earlier courts. Forget about actually protecting people’s rights. Excluding ill-gotten evidence is merely an exercise to deter police from violating the Bill of Rights, the court reasoned.
The Leon court cited United States v. Calandra, 414 US 338 (1974) to conclude:
“[T]he (exclusionary) rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.
“The Fourth Amendment contains no provision expressly precluding the use of evidence obtained in violation of its commands.”
The Calandra court cited Elkins v. United States, 364 U. S. 206, 217 (1960).
“The (exclusionary) rule is calculated to prevent, not to repair. Its purpose is to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.”
By 1974, the U.S. Supreme Court was convinced that a person’s rights, once violated, could not be repaired. Relying on Linkletter v. Walker, 381 U. S. 618, 637 (1965) the Calandra court insisted:
“[T]he ruptured privacy of the victims’ homes and effects cannot be restored. Reparation comes too late.”
Perhaps the court should ask the person thrown in jail on ruptured privacy rights when it is too late to restore those rights.
Once the court had decided a person whose rights were poisoned could not be un-poisoned, it began to examine the motives of public officials serving the poison. Such was born the “good faith” exception.
The court in Herring v. United States, 555 U.S. 135 (2009) said police acting on a non-existent warrant they believe another jurisdiction issued can nonetheless use their poisoned fruit evidence at trial – as long as it is all in good faith.
Who Benefits from Bad Faith
Even if we agreed, for arguments sake, that the Bill of Rights is but a “form of words” and courts can never effectively enforce those rights, we must nonetheless question the hollow basis for allowing “good-faith exceptions.”
The exceptions are based on a shallow presumption that to bar certain ill-gotten evidence would not significantly deter the government from violating citizens’ rights.
Courts’ decisions about “good faith” exceptions have repeatedly tried to cast subjective matters of belief in terms of objective reasoning. They presume officers’ stated reasons are their only reasons. Courts conveniently avoid the reality that police systematically use minor offenses as pretexts to investigate arguably moral codes.
Police did not suspect the one-brake-light driver of robbery, mayhem or murder. They initiated an investigation because thought they might catch a drug user.
Their department’s management and funding structure no doubt favored time spent in the field, enforcing questionable motor vehicle codes rather than time spent in the office, studying the law or asking legislators to clarify ambiguous legal language. Such picayune traffic enforcement might not prevent traffic accidents or build rapport with the community, but it might turn up some drug cases. And the Heien decision rewarded the department for their choice.
Courts clerks have little incentive to keep warrant databases up to date if the net result is more business for the court when non-existent warrants provide police pretext for investigating possible repeat offenders.
The Leon court claimed restrictions on ill-gotten evidence would not deter judges from signing bad warrants. One problem – the court had no evidence to support their hasty conclusion. Judges in many jurisdictions must regularly stand for reelection. Even popular judges do not like to have their decisions tossed out.
Is the Judicial System Really that Weak?
The deterrent test the U.S. Supreme Court has embraced to excuse a disregard for the peoples’ right to be secure against unreasonable searches and seizures woefully underestimates the strength of the judicial system.
Courts can do more than deter public agencies from acting on outdated warrants or using dubious traffic stops to launch major investigations of moral offenses. Courts could simply refuse to accept ill-gotten evidence. The poison of such violations continues to be poison when police change their tune and begin investigating a drug crime rather than a brake light.
Constitutional rights do not apply only to law-abiding systems. Courts can – and should – protect everyone’s rights, including those who would seem guilty if examined in the light of ill-gotten evidence.
What Can Defense Lawyers Do About it?
Until police, lawmakers and courts return their focus to the great principles embodied in the fundamental law of the land, those accused of crimes must increasingly rely on savvy criminal defense lawyers for defense against intrusive law enforcement and prosecution practices.
While the U.S. Supreme Court’s good faith exceptions have eroded privacy rights, Oklahoma courts until very recently have held a more jealous view of those basic rights. If Oklahoma courts continue recent flirtations that infringe on those rights, a criminal defense attorney must more carefully examine other aspects of a case to assure that criminal procedures are correctly followed. Many times they are not.
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