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Sunday, June 18, 2006

From Tony Scalia's PDA

Comments (41)

Granted, this suggests the possibility of a massive change in our legal system... but I've never particularly understood the logic of the exclusionary rule in the first place (at least, as far as I understand it...)

Why exclude evidence of violations of the law, just because that evidence was collected via improper procedure?

Seems to me that if the cops follow improper procedure in gathering evidence, the logical remedy is to go after the cops for that violation, not to give the original wrongdoer a "free pass". And that seems to be what Scalia is suggesting, from what I can tell.

Of course, you'd have to do much more than just slap the cops on the wrist when they get it wrong... The penalties for conducting an illegal search/seizure should be severe enough to act as a real deterrent against the practice.

Yeah, right. Everybody, including Justice Scalia, knows that that will never happen.

It's all just part of the fun in the George Bush Police State. And it's going to get worse -- much worse.

It's all just part of the fun in the George Bush Police State. And it's going to get worse -- much worse.

When I read this from the author of this Blog, not on BlueOregon, it gives me the willies in a big way.

Oh come on Jack! Living in Scalia's America will be easy. Just don't utter any of the secret magic words on your phone or type them online or talk to anyone who's uttered or typed them and you'll be fine. Tony, his buddy seated to his right, and the new guy all the way down at the end of the bench were just making sure we all understood the new rules.

I haven't for one second sight of the fact that the program that really does listen in on citzens' phone conversations, not just those of terrorists like the NSA under Bush, but just plain citizens --Echelon-- was foisted upon us by Clinton.

Yes, let's not blame it on Bush. Things are much better with him running the show. Higher standard of living, better international relations, booming middle class, cleaner environment, healthy economy, better security -- we're all working together and moving forward. No wonder, he's such a brilliant guy...

So... because G.W. Bush is an incompetent president, drug dealers should be given a free pass when the cops don't give them enough time to hide their stash before serving a warrant?

Again... apart from the established precedent... i.e., "that's how we've always done things"... what exactly is the rationale for the exclusionary rule? Help me to understand why wrongdoing on the part of law enforcement should negate wrongdoing on the part of criminals... that just plain doesn't make any sense to me.

I didn't bring the President into this -- somebody else brought up Clinton, and I was responding to it.

As for the reasons for the exclusionary rule: For one thing, because it's been the law of the land for the last 45 years, and it's worked quite well. Second, because there's no other meaningful deterrent to the cops violating your rights. You think you'll ever get a nickel by suing a police officer for breaking the rules of search and seizure? Dream on. Civil rights without meaningful remedies are worse than no rights at all.

And third, because the rule is set up to protect innocent people more than anything else. If there's no penalty for the cops busting into your bedroom because they don't like your haircut, they're going to do it. It's all for the war on terr, ya know.

We have a Bill of Rights that's supposed to protect everyone. There's no exception in there for people who are guilty.

How ironic that it was in Mapp v. Ohio, which applied the exclusionary rule to the states via the 14th Amendment that the majority opinion noted that "nothing can destroy a government more quickly than its failure to observe its own laws."

And now, following warrantless wiretapping, data collection, security leaks, etc., we add another element to this administration's era...the decline of the exclusionary rule.

David Wright, you inadvertantly answered your own question:
Q:"I've never particularly understood the logic of the exclusionary rule..."

A:"The penalties for conducting an illegal search/seizure should be severe enough to act as a real deterrent against the practice."

Me, I cry not over Bush's NSA eavesdropping on al-Qaeda's precious overseas phone calls to their domestic sleeper cells. And I'm not alone --the vast majority of Americans agree with me-- in finding the al-Qaeda Bill of Rights platform flat-out ugly. So I'd be distancing myself from that one, not cozying up to it.

Even as a first-year law student I found the exclusionary rule flat-out weird. Ted Bundy was the criminal sensation de jour back then, and I remember thinking that, gosh, if some cop failed to properly Mirandize him, he walks, footloose and fancy-free, with millions of college coeds out there for him to target. How could that be justice? How could that be in the public interest? How does letting a guilty and dangerous perp go free benefit anybody? The exclusionary rule clearly doesn't deter bad cops. All it does is endanger the public. The better rule would be to continue to hold the guilty fully accountable, including cops who violate people's civil rights. Terminate them if they are incompetent. Prosecute them if they are intentional.

Which is to say, if you know *anything* about criminal procedure, it's so easy for cops to follow proper procedure that there is absolutely no reason for them to do otherwise.
That's why the exclusionary rule makes sense: it's harsh because there's no legitimate reason for it to be imposed, aside from laxity or wrongdoing on the part of the police that threatens not only the rights of the criminal, but the rights of the innocent.

Jud, of course I understand the supposed deterrent value of the exclusionary rule. What seems illogical to me is why the "penalty" should be "give the crook a free pass".

I'm all for protecting the rights of the innocent, and I'm all for the concept of being presumed innocent until proven guilty. I take your point, Jack, that the constitution applies to everyone.

Which is why I do believe there should be a strong deterrent to improper search/seizure. But I don't see why the cost of that deterrent should be borne by society (let the bad guys walk) instead of the individual(s) responsible (prosecute the cops, too, as Rusty says).

Under the current system, your right to be free of unreasonable search/seizure is conflated with your apparent right to break the law as long as you don't get caught. That's what it basically boils down to -- legitimate evidence of wrongdoing is excluded simply because the wrongdoer shouldn't have been caught.

That's the part that seems logically inconsistent to me: we are a nation of laws, so if we (the authorities) break the law while catching you breaking the law, the law you broke doesn't apply?

So what do you do with this guy? Talk about the posterboy for the exclusionary rule. Do we still allow the evidence he's collected even though we know he can't be trusted?

It makes sense to insist that government, when attempting to take away someone's freedom via a criminal trial, must follow its own laws to the letter.

Our freedom is precious. For the accused, it's all or nothing. Win or lose. The exclusionary rule puts a high but essential burden on government to take extra care in the pursuit of taking away someone's liberty, even for evil Ted Bundy.

Obviously the entire story of the Mollala officer is pathetic (see Chris' link above)... but here's what really stood out to me in that article -

"In one case Lister said he'd documented four purchases of drugs from a suspected drug dealer, one more than the three required to get a search warrant. Lister later admitted he documented just two purchases before submitting the affidavit."

WTF? Is there any other crime that you have to witness THREE times before an officer can take action?

The Exclusionary Rule does not give crooks "a free pass" unless ALL the evidence against them is tainted by the police failing to follow the rules. The police remain free to find evidence and build a case from witnesses or evidence they DIDN'T obtain unlawfully. That doesn't strike me as an absurdly high barrier.

And frankly, yes, I'd rather have a guilty guy set free than allow the police to ignore the rules. Most crooks aren't real bright; given time enough, they'll hang themselves. And having been burned once, the cops will probably be a lot more careful not to muff the arrest and prosecution the second time around.

We are the country that's actively using torture overseas. Wait 'til we start using it domestically -- it won't be long. "Prosecute the cops! Sue the cops!" Sure...

Do a google on Corey Maye and then tell me why cops should be able to barge in to a house unannounced.

I think the crucial thing the commenters on this blog are missing is that this was a search pursuant to a warrant - not an entry to a residence upon which the cops found evidence that they had not expected.

The difference is huge. And I'm an advocate for "a man's home is his castle." I don't think there should be any entry into a person's home unless there is a warrant issued. No sneak-n-peaks*, no bugging, no barge-on-in-because-we-think-you're-a-dealer, or any of that type of police activity. Guilty or not, civil rights exist and without extreme penalties for infringement, they are worthless.

However, in this case, the cops announced their presence, and walked in through the unlocked door. They didn't knock, but they didn't kick it in, either. My hackles get up when you hear about these cases where 6 cops bust a door down and hold everyone at gunpoint while they trash your house, even the kids. Oops. Transposed a digit. Wrong house.

But, whether it was Clinton, Bush, or the Martians, we are on a decidely authoritarian path that scares the bejeezus out of me. This case doesn't help, but it's not as bad as I had first thought it was. Upon review, the play stands as called.

*not a typo. Couldn't post with proper spelling due to content filter. Interesting, eh?

This case doesn't help

We are now way down the slippery slope. The exclusionary rule is over. Like the post says, it's all on a busy to-do list that will be controlling the show for a generation or more. Thumbscrew City.

The problem with the exclusionary rule is that it strips victims of crime from getting a day in court.

The exclusionary rule makes more sense when it goes after victimless crimes (drugs, pornography, prostitution) because we don't want government stomping through bedrooms looking for evidence of vice.

But it makes no sense to let a killer off the hook because some cop made an arrest error.

If we didn't have so many victimless crimes, I don't think the courts would have needed to fashion the exclusionary rule.

I think in Mapp v. Ohio, the police conducted a warrantless search of a residence and kept going through items looking for stolen goods with no luck. Eventually, a cop found some pornography (back when such was illegal) in an old trunk and used it as the basis for arrest.

Many of the other exclusionary law cases involve illegal drugs.

These possession crimes make it easy to plant some contraband (removed from an evidence locker) in order to validate a search.

My suggestion: reduce the number of victimless crimes and strengthen civil rights claim remedies for victims of warrantless searches. Then we won't miss the exclusionary rule so much and the real victims of crime can still get their day in court.

But it makes no sense to let a killer off the hook because some cop made an arrest error.

Cops are drilled to do everything "by the book". That's why they read cards with Miranda printed right on them and initial them immediately after reading them. They've got checklists and procedures that keep them in check and make sure every defendant is given the same access to due process. Which, afterall, what the American court system is all about. It's the process, in part, that keeps cops in line and innocents free. I'm a PRIME example. The crimes I was accused of, aggrivated assault and drive-by shooting, were certainly not victimless, but in no way should that have given the state a lower barrier to prove their case. They've got a huge barrier to get a conviction, yet they're able to get over it regularly. We cannot start allowing exceptions.

Jud said: if you know *anything* about criminal procedure, it's so easy for cops to follow proper procedure that there is absolutely no reason for them to do otherwise.
That's why the exclusionary rule makes sense: it's harsh because there's no legitimate reason for it to be imposed


I take issue with the dissenters' use of "no viable alternatives" as a reason to uphold the Exclusionary Clause. The fact that civil suits against cops rarely succeed does not justify using the Clause as mere leverage. Once we go down that route we create a Jinga-like puzzle of checks and balances that simply requires the extraction of one piece to bring down the entire establishment.

As to Jack's points:

1. It has been on the books -- clearly that is an important point to consider when deciding a case but, given the Court's history, I doubt many would be happy if that were a rule.

2. It has worked quite well -- yes, it works extremely well as leverage but, as I argued above, I have a real problem with laws supported for this purpose.

3. You won't win a civil suit against cops -- comes back to the same point. Is that a sufficient reason to uphold a law? I like its effects but not the logical implications.

4. To protect innocent people -- I am entirely against warrantless searches and wiretaps, but that is not the issue at hand. I don't see how this comes into play.

Jack says, "We have a Bill of Rights that's supposed to protect everyone." That's a hard sell to the victim's loved ones who watch the accused walk solely because the cops moved in a few seconds too soon.

If through a proper warrant incriminating evidence is discovered, it should stand. As a nation we can surely figure out a form of punishment that deters police without permitting a potentially guilty man free. I think the right had it right this time.

That's a hard sell to the victim's loved ones who watch the accused walk solely because the cops moved in a few seconds too soon.

When the cops break the rules, somebody loses. There's no way around it. The idea is to make it so that they stay within the rules. The threat of "civil rights suits" is so laughable, we have an exclusionary rule. Or at least, we had one until we turned the country over to Bush.

Hear on the radio news, Abortion Rights is next on the Docket.

The threat of "civil rights suits" is so laughable, we have an exclusionary rule.
How many bites did the various levels of government have at the apple before they finally got to and crushed the cops in the Rodney King case? The point being, that if the government decides to get serious about getting a cop, they get him. Meanwhile, letting the perps walk does nothing to the cop who violated his rights. The cop goes home with his buddies, they pop open a few brews, and they all get a good guffaw out of it. Sending them to prison wipes those smiles right off their faces.

Wheeeee, it's a good ol'-fashioned StereotypeFest!

Cops: Don't care about procedure or Constitutional rights, don't care if job done properly, booze up with buddies. Check.

Scalia: Mussolini, Jr., right-winger stripping rights like clothes at the Acrop, in cahoots with Bush hegemony. Check.

Blogger comments: Overly broad statements, nonsensical simplifications, histrionic rhetoric. Check.

We need a Nazi invocation to complete the circle. Or perhaps a good "A priest, a rabbi and an imam walk into a bar" joke.

We certainly don't need to wait any longer for a right-wing troll...

Given the flawless record of bringing police officers to justice in Portland for excessive use of deadly force, I see no need whatsoever for the exclusionary rule. The only people who have anything to fear from the police are the guilty. And, maybe, some with certain kinds of nervous tics.

When you say "[W]e are a nation of laws, so if we (the authorities) break the law while catching you breaking the law, the law you broke doesn't apply?" you are blatantly mis-stating the issue.
When you can re-state the issue correctly, you will know the answer to your question.

Jack, while I enjoy the snarky personal comment, your assertion is incorrect. Heck, I've told friends that I couldn't discuss Bush and NSA issues on the phone. One doesn't have to be right wing to dislike false statements, juvenile rhetoric and untenable arguments attacking any "side".

But thank you proving my simplification point.

How so, Jud?

You've got law enforcement with a valid warrant improperly executed.

There was in fact evidence of wrongdoing found during that improper execution of the valid warrant.

However, because the cops technically broke the rules, that evidence doesn't count, i.e., the criminal can't be prosecuted on the basis of that evidence.

So we have a situation where we know that somebody has broken the law, but we effectively aren't allowed to show that they broke the law in court.

As others have pointed out, this is not a case of warrantless search, etc. This is essentially the epitome of "getting off on a technicality".

So if I've got this wrong, Jud, please state the issue correctly for me.

I may not be a lawyer, but as a school teacher I know an antiquated and unjust form of punishment when I see one. Excluding evidence instead of punishing the cops is entirely misguided. It would be akin to me telling a student I'll put his best friend in time-out if he doesn't complete his homework. Will it be effective? Sure. Is it appropriate? Heck no, because it's threatening to punish the WRONG party, exactly as the exclusionary rule does.

I don't care if civil suits against cops are "laughable"...that in and of itself should not be the foundation of such an important law.

The Supreme Court has forced upon us a need to discover a new way to punish delinquent cops. None of this round-about crap that fails to directly punish the wrongdoers, and ultimately leads to the unacceptable consequence of letting guilty men walk. If the cops abuse this new decision, then people will do what is necessary -- through the PROPER channels -- to change police procedure.

I know this thread is dead, but I saw this today, and as per my post, it's the kind of thing that scares me...

At Least They Knocked
Rodolfo Celis answered a knock at his door one night and found himself staring at the business end of a gun. Six Murrieta, California, police officers forced Celis and five family members into their living room while they searched their house and garage. When family members asked what they were looking for, they were just told to shut up. Celis says police didn't even show him a warrant or ask permission. Police officers say they didn't need either because they were searching for a parolee they believed was armed. They didn't find the man they were looking for, but as they were leaving, the police did realize they were at the wrong house. The house the parolee allegedly lived at is the one next door to the Celis home. "We are all human and are going to err on occasion," said Lt. Bob Davenport. The darkness may have made it difficult to see the numbers on the houses, he adds. "They couldn't light it up with a flashlight to verify the numbers, because that would put them at a tactical disadvantage," Davenport said.


It's mighty dispiriting to see the level of entrenched ignorance on display in this comment thread about basic civil rights. But it goes a long way toward explaining how and why our rights are being eroded so quickly.

"Excluding evidence instead of punishing the cops is entirely misguided. It would be akin to me telling a student I'll put his best friend in time-out if he doesn't complete his homework."

No, it's more like the teacher refusing to accept homework that was done by someone else, or plagiarized. It doesn't matter how well written or accurate the material is, it's irreparably tainted--giving the student a good grade but writing a stern warning beside the "A" doesn't do anything to prevent a recurrence. Failing him does.

I entirely agree. Permitting a plagarized assignment with a stern warning will not prevent the same from happening again. Undoubtedly the Supreme Court has created a gaping divide by removing the practical deterrent that keeps police officers from barging in at random but, in my opinion, that is a correct judgment for two reasons. One has to do with the entirely misguided form of punishment represented by the exclusionary rule, and is founded upon the existence of other, viable alternatives to deter cops from creating the act. As of today, we are certainly in a time of limbo, but it must not remain this way.

First, my whole analogy rests on the basis that someone else is unjustly punished for the wrongdoing of a particular individual. In the case of police officers entering too early, society often bears the brunt of the mistake by having a guilty individual walk free. My classroom analogy is similar in that an innocent student is punished for the delinquency of a different child. My point is: those who make the mistake should be punished -- directly. At most one could argue that police officers are indirectly punished through the exclusionary rule. Sadly, an innocent party, whether it be the good student who does his/her homework or society at large, must suffer the consequence that belongs to someone else.

Second, the public is not without recourse. We are now forced to make our opinion known so that police procedure might be changed (if that is what people truly want) to properly punish the rightful wrongdoers (cops who enter early). This issue must be taken up by the public through its elected officials (and those appointed by the elected) to adapt police procedures. People will determine for how long they are willing to accept police breaking the rules.

Although many will disagree, I predict that we will eventually find ourselves with a better deterrent that, if breached, will punish the wrongdoers rather than the innocent.

What a bunch of jumbled thinking. Try to separate the issues of "punishment" and "deterrence". The exclusionary rule is about effectively preventing (deterring) police misconduct. It's not about punishment.

You say I should "try to separate the issues of 'punishment' and 'deterrence'." Unfortunately, I don't see how that's possible. One of the primary foundations of our legal system is to make things right by punishing wrongdoers.

Scalia was exactly right: the benefit of deterrence simply does not outweigh the social cost (punishment to society) of letting guilty men walk. My argument, or "jumbled thinking", simply states that there are better alternatives to deter police from breaking the "knock and announce" rule that do not wrongfully PUNISH society.

If you'd care to explain the basis of the exclusionary rule without referring to any form of punishment, I'd love to hear it. Or maybe you just think letting guilty people walk free does not punish society. At that point we'd just have to agree to disagree.

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