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  #101  
Old 10-28-2009, 04:19 PM
Whack-a-Mole Whack-a-Mole is offline
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Originally Posted by Hamlet View Post
"IF IT'S BROKEN, FIX IT: MOVING BEYOND THE EXCLUSIONARY RULE: A New and Extensive Empirical Study of the Exclusionary Rule and a Call for a Civil Administrative Remedy to Partially Replace the Rule." 83 Iowa Law Review 669 (1998). I can't find it online, but it may be on SSRN.

"Our study confirms what previous studies revealed: the exclusionary rule does not effectively deter police misconduct."

"The most significant conclusion from the study concerns the failure of the exclusionary rule to effectively deter police misconduct. The rule's failure as a specific deterrent is demonstrated in two ways: (1) the apparent absence of any formal procedure in any of the departments studied for notifying officers when they have had evidence subsequently excluded by the court; [FN454] and (2) the failure of the officers who had previously had evidence excluded to outperform other officers on the hypothetical questions."

"Similarly, the rule lacks any significant general deterrent effect, as is recognized by the officers themselves."

<snip>

Why? Why do you "doubt it would be much of the time"? Is there some kind of evidence you know of that supports that? Do you think judges wouldn't exclude irrelevant evidence? And the success or failure of the police misconduct cases depends a great deal on individual facts. I'm guessing most juries and judges understand the difference between a mistake and intentional misconduct.
I would be interested to see that study. Police officers are unaware when their evidence gets thrown out? Wow! I'd think the DA would be pissed and yell at the police chief for his officers screwing his case who, in time honored fashion, would dutifully pass the ass kicking down the chain till the cop gets it. Also, asking hypotheticals of officers who already violated search rules answered questions wrongly about search rules? They did not even know their evidence had been tossed (per the first part) and then they wonder why they answer questions wrong? Sounds to me like the whole thing is not working because no one is kicking the cop's ass for screwing up and educating them on proper procedures.

Looking at the following it would seem California saw a lack of an exclusionary to be an ongoing problem in law enforcement.

In People v. Cahan (where California adopted an exclusionary rule before Mapp)

Quote:
We have been compelled to reach that conclusion because other remedies have completely failed to secure compliance with the constitutional provisions on the part of police officers with the attendant result that the courts under the old rule have been constantly required to participate in, and in effect condone, the lawless activities of law enforcement officers.

SOURCE: http://online.ceb.com/calcases/C2/44C2d434.htm
The Los Angeles police seemed downright ok with performing illegal searches.

Quote:
Justice Traynor and his colleagues seemed astounded by how casually and routinely illegally seized evidence was being offered and admitted in the California courts. After noting that Los Angeles police had candidly admitted that they had illegally installed listening devices in the defendants' homes and had described, with equal candor, how they had forcibly entered buildings without bothering to obtain warrants by breaking windows and kicking in doors,11 Justice Traynor observed:

[W]ithout fear of criminal punishment or other discipline, law enforcement officers . . . frankly admit their deliberate, flagrant [unconstitutional] acts . . . . It is clearly apparent from their testimony that [Los Angeles police officers] casually regard [their illegal acts] as nothing more than the performance of their ordinary duties for which the City employs and pays them.12

SOURCE: Harvard Journal of Law and Public Policy
Sure looks to me like a lack of the exclusionary rule is a provably bad idea.

Last edited by Whack-a-Mole; 10-28-2009 at 04:22 PM..
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  #102  
Old 10-28-2009, 04:40 PM
Hamlet Hamlet is offline
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Originally Posted by villa View Post
Don't get me wrong, I support more sever personal liability for the officers involved. I just don't think it is a case of one or the other.
The stated purpose of the exclusionary rule was to be a deterrent. It's turned out that it isn't so much a deterrent. And it is only a deterrent that only serves the violation of the 4th amendment that actually result in criminal charges and does nothing for the innocent victims.

Don't misunderstand me, I would have some serious concerns about getting rid of the exclusionary rule at this point in time. But I think it's a damn fool way to protect 4th Amendment rights.

Quote:
Originally Posted by villa
From my (limited) experience in criminal work, I found juries prone to believe pretty much anything the police told them, and judges extremely wary of excluding evidence, bending over backwards to accept what were, IMHO, utterly implausible police explanations of how something was in plain view, or how a warrentless search was actual based on reasonable suspicion of immediate danger to a third party.
Two things. First, that's in criminal cases, not in civil cases against police officers. Second, and the article I cited earlier bears this out too, one of the largest effects of the exclusionary rule has NOT been deterring 4th Amendment violations, but instead to increase the deception in the courtrooms. Some police officers who would ordinarily not even consider it, will shade the truth or out and out lie, to avoid having evidence suppressed. And some judges are willing to let it slide, because they too are unhappy with the absolutely strict application of the exclusionary rule in all cases. These unintended, negative effects of the exclusionary rule, as well as letting criminals go free and a lessening of respect for the 4th amendment itself; make it a much harder prospect to argue that the deterrent effect outweighs them.

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Originally Posted by villa
Given that, I don't have a lot of faith in police being actually punished for deliberate misconduct.
It's all a matter of degrees. A police officers, thinking he has probable cause when he may not, makes a mistake, yeah, it's not likely going to be punished severely at all. And that is where a vast majority of these cases reside, in mistakes or lack of knowledge, rather than in intentional misconduct. And, once again, the exclusionary rule isn't necessarily changing that one iota.
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  #103  
Old 10-28-2009, 04:43 PM
Bricker Bricker is offline
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Originally Posted by villa View Post
From my (limited) experience in criminal work, I found juries prone to believe pretty much anything the police told them, and judges extremely wary of excluding evidence, bending over backwards to accept what were, IMHO, utterly implausible police explanations of how something was in plain view, or how a warrentless search was actual based on reasonable suspicion of immediate danger to a third party. Given that, I don't have a lot of faith in police being actually punished for deliberate misconduct. Hell, I don't have a lot of faith either in evidence being excluded, at least not at a trial court level. I don't have any experience in appelate level criminal matters.
I never had a suppression motion decided by a jury. They were always in limine and settled by the judge before trial.
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  #104  
Old 10-28-2009, 04:44 PM
Whack-a-Mole Whack-a-Mole is offline
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The stated purpose of the exclusionary rule was to be a deterrent. It's turned out that it isn't so much a deterrent.
See my post just above yours and what the California court noted about how the police acted prior to instituting an exclusionary rule. The Los Angeles police apparently routinely (to the point it seems they were actually casual about it) disregarded rules on this and the courts became complicit.

Since the exclusionary rule is in force I am willing to bet the Los Angeles police are FAR better than they were 55 years ago.

As such it would seem the exclusionary rule provided an effective deterrent. One better than any deterrent presumably in place up till that time.

Last edited by Whack-a-Mole; 10-28-2009 at 04:45 PM..
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  #105  
Old 10-28-2009, 04:45 PM
villa villa is offline
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Originally Posted by Bricker View Post
I never had a suppression motion decided by a jury. They were always in limine and settled by the judge before trial.
I know. I said that juries tend to believe what police tell them, and that judges try to avoid excluding evidence. At least in my (extremely limited) experience.

And Hamlet, I am not ignoring that article, I just haven't read it yet. I've printed it off and it is 100 pages. I already have a couple of issues with the introduction (and the fact it is written by Pepperdine professors, a school that isn't exactly reknowned as being a bastion of individual rights... )

Last edited by villa; 10-28-2009 at 04:48 PM..
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  #106  
Old 10-28-2009, 05:00 PM
Whack-a-Mole Whack-a-Mole is offline
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Here's more on the other "remedies" aside from excluding evidence and their effectiveness from the article I just cited:

Quote:
[In] People v. Before,13 the occasion for Judge (later Justice) Cardozo's famous opinion explaining why New York would not adopt the federal exclusionary rule. Cardozo maintained, as have most critics of the exclusionary rule ever since, that excluding the illegally seized evidence was not the only effective way to enforce the Fourth Amendment (or its state constitutional counterpart): "The [offending] officer might have been resisted, or sued for damages, or even prosecuted for oppression. He was subject to removal or other discipline at the hands of his superiors."14

<snip>

A majority of the Court took a very different view of the various alternatives (perhaps one should say, theoretical alternatives) to the exclusionary rule a dozen years later when it handed down Mapp v. Ohio,19 overruling Wolf. This time the Court dismissed alternatives to the exclusionary rule, noting that "[t]he experience of California that such other remedies have been worthless and futile is buttressed by the experience of other States."20 But the Court had nothing specific to say about the experience in any state other than California nor did it rely on empirical studies. Instead, the Court relied on comments by Justice Traynor in Cahan.

<snip>

Fortunately, impressive evidence of the ineffectiveness of the so-called alternatives to the exclusionary rule does exist. But it is not to be found in the Mapp opinion itself. It is to be found rather in the reaction of law enforcement officials to the Mapp decision.

<snip>

Although Michael Murphy, the police commissioner of New York City at the time, did not say so in so many words, he left no doubt that because New York courts (relying on the Defore case) had permitted the prosecution to use illegally seized evidence up to the time of Mapp, neither the commissioner nor the thousands of officers who worked for him had been taking the law of search and seizure at all seriously. As the commissioner recalled some time later:

I can think of no decision in recent times in the field of law enforcement which had such a dramatic and traumatic effect as [Mapp]. As the then commissioner of the largest police force in this country I was immediately caught up in the entire problem of reevaluating our procedures, which had followed the Defore rule, and . . . creating new policies and new instructions for the implementation of Mapp . . . . [Decisions such as Mapp] create tidal waves and earthquakes which require rebuilding of our institutions sometimes from their very foundations upward. Retraining sessions had to be held from the very top administrators down to each of the thousands of foot patrolmen and detectives engaged in the daily basic enforcement function.23

Why was Mapp's effect so "dramatic and traumatic"? Why did it create "tidal waves and earthquakes"? Why did it require "retraining" from top to bottom? Had there been any search and seizure training before Mapp?

What did the commissioner mean when he told us that prior to Mapp his police department's procedures "had followed the Defore case"? Defore did not set forth any procedures or permit the police to establish any procedures other than those that complied with the Fourth Amendment. It did allow New York prosecutors to use illegally seized evidence, but it did not (as the commissioner seemed to think) allow New York police to commit illegal searches and seizures. Is there any better evidence of the inadequacies of the existing alternatives to the exclusionary rule than the police reaction to the imposition of the rule?

SOURCE: http://www.allbusiness.com/legal/3585798-1.html
A lot more at the link (lot more) but I think that illustrates the need for the exclusionary rule and the failure of other remedies to keep police in check.
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  #107  
Old 10-28-2009, 05:28 PM
Hamlet Hamlet is offline
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Originally Posted by Whack-a-Mole View Post
A lot more at the link (lot more) but I think that illustrates the need for the exclusionary rule and the failure of other remedies to keep police in check.
The gist of the argument is that, although we never seriously tried any of the other remedies, including many not listed in the article, they would all succumb to the problems with the exclusionary rule. I'm not sure I buy that. There has been a great amount of literature about other options, including rewriting the exclusionary rule, that Kasimar doesn't even deal with.

At this point in time, yes the exclusionary rule is necessary. I wouldn't advocate getting rid of it until such a time as there are other, better options available, to limit illegal searches by police. But ignoring the costs of the exclusionary rule (including the limitation on the 4th amendment that came with it) in favor of simply repeating the "it deters" mantra isn't going to work.
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  #108  
Old 10-28-2009, 05:32 PM
Hamlet Hamlet is offline
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Originally Posted by villa View Post
I know. I said that juries tend to believe what police tell them, and that judges try to avoid excluding evidence. At least in my (extremely limited) experience.

And Hamlet, I am not ignoring that article, I just haven't read it yet. I've printed it off and it is 100 pages. I already have a couple of issues with the introduction (and the fact it is written by Pepperdine professors, a school that isn't exactly reknowned as being a bastion of individual rights... )
I don't agree with the entirety of the piece either. On some points it's right, on some points, I think it's wrong. But it is a good starting point. And the article by Kamisar has some good critique also. Although I did find Cardozo's proposal (instead of keeping evidence from the criminal justice system by excluding it, the defendant/victim of the illegal search would receive sentence reductions) to be very intriguing.

Any discussion needs to recognize not just the pro's, but also the con's, of the exclusionary rule. But, given the cons, I'm pretty sure I don't want it expanded at all.
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  #109  
Old 10-28-2009, 10:02 PM
Whack-a-Mole Whack-a-Mole is offline
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The gist of the argument is that, although we never seriously tried any of the other remedies, including many not listed in the article, they would all succumb to the problems with the exclusionary rule. I'm not sure I buy that. There has been a great amount of literature about other options, including rewriting the exclusionary rule, that Kasimar doesn't even deal with.
Huh? Are you saying there were no consequences in place for police violations on search & seizure? All the things the court listed were just possibilities none of which were actually in place? The court is ok with no actual remedies to violating the constitution just as long as it is theoretically possible to have some? The people in New York could be a victim of illegal police action with zero recourse in the law?

Or was it that penalties existed but they did nothing to dissuade violations?
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  #110  
Old 10-28-2009, 10:16 PM
Hamlet Hamlet is offline
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Originally Posted by Whack-a-Mole View Post
Huh? Are you saying there were no consequences in place for police violations on search & seizure? All the things the court listed were just possibilities none of which were actually in place? The court is ok with no actual remedies to violating the constitution just as long as it is theoretically possible to have some? The people in New York could be a victim of illegal police action with zero recourse in the law?
I'm saying the consequences that were in place are not the same as the ones that COULD HAVE been in place instead of the exclusionary rule, or that could be put into place now. Civil liability with real teeth, "direct sanctions" (to borrow Kamisar's term) for police officers, administrative hearings, sentence reductions, or the host of other potential options were never really used to deal with violations of the 4th Amendment. Kamisar seems to simply conclude that, since civil liability as it was back then didn't work, it couldn't be made to work now, and that the other solutions wouldn't work either. Instead, we have the exclusionary rule, which has little to no deterrent effect, and whose most pervasive effects are an erosion of 4th Amendment protections, dishonesty in the courts, and letting criminals escape punishment.
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  #111  
Old 10-29-2009, 07:20 AM
jtgain jtgain is offline
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I can't see how civil or criminal sanctions against police officers would work as any kind of deterrent. Surely, except in only the most egregious cases, the officers will claim (and be backed up by their superiors) that it was an innocent mistake and/or they thought they were following the law, etc.

Can you imagine the news at Christmas time? Officer Smith, a decorated 26 year veteran, can't afford to buy his kids Christmas presents this year because he had to pay a $2500 fine after busting a meth lab because some "liberal judge" said it was an illegal search. Meth pushers on the street, Officer Smith eating rat stew for his Christmas dinner, kids in rags, blah blah. No way would a cop pay anything under this type of system.
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  #112  
Old 10-29-2009, 07:53 AM
Hamlet Hamlet is offline
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I can't see how civil or criminal sanctions against police officers would work as any kind of deterrent. Surely, except in only the most egregious cases, the officers will claim (and be backed up by their superiors) that it was an innocent mistake and/or they thought they were following the law, etc.
And there would be hearings into whether or not it was, just as they already do for motions to suppress. And a personal, direct sanction against the person who did the misconduct would be a helluva lot more of a deterrent than non-admission of evidence.

Quote:
Originally Posted by jtgain
Can you imagine the news at Christmas time? Officer Smith, a decorated 26 year veteran, can't afford to buy his kids Christmas presents this year because he had to pay a $2500 fine after busting a meth lab because some "liberal judge" said it was an illegal search. Meth pushers on the street, Officer Smith eating rat stew for his Christmas dinner, kids in rags, blah blah. No way would a cop pay anything under this type of system.
I am sure there would be defense funds, malpractice insurance, and a slew of other things that would work to minimize the impact upon the individual police officer.

But what just makes me shake my head is that you nad others seem bent on finding flaws in the deterrent effect of direct sanctions, yet just whistle along happily about the exact same flaws of excluding the truth from the criminal justice system. The exclusionary rule is an indirect sanction, one that may or may not even be known by, let alone a concern of, the police officer. You develop these grand theories on how the police officer would get around a direct sanction and completely ignore how they already get around any actual sanction to themselves from the exclusionary rule. Yet, I've heard no complaints about how the exclusionary rule has no deterrent effect, or that judges will limit the 4th Amendment to get around the exclusionary rule, or the slew of other problems with the exclusionary rule.

Last edited by Hamlet; 10-29-2009 at 07:53 AM..
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  #113  
Old 10-29-2009, 11:35 AM
Whack-a-Mole Whack-a-Mole is offline
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Originally Posted by Hamlet View Post
But what just makes me shake my head is that you nad others seem bent on finding flaws in the deterrent effect of direct sanctions, yet just whistle along happily about the exact same flaws of excluding the truth from the criminal justice system. The exclusionary rule is an indirect sanction, one that may or may not even be known by, let alone a concern of, the police officer. You develop these grand theories on how the police officer would get around a direct sanction and completely ignore how they already get around any actual sanction to themselves from the exclusionary rule. Yet, I've heard no complaints about how the exclusionary rule has no deterrent effect, or that judges will limit the 4th Amendment to get around the exclusionary rule, or the slew of other problems with the exclusionary rule.
Shake head indeed but frankly it is your arguments that are lacking.

Exclusionary rule has no effect? Well, I cited what was happening in Los Angeles where the police so routinely disregarded legal means of search that they were casual and up front about it. I cited New York City's police chief telling how they had to retrain their entire police force, top to bottom. That implies they were utterly unconcerned about the 4th Amendment till Mapp forced it on them. Then I found this: "When the exclusionary rule was not in effect in the state of Ohio, for example, the Cincinnati police force rarely applied for search warrants. In 1958 the police obtained three warrants. In 1959 the police obtained none." (cite of the cite...cannot find the original document online..PDF)

Anecdotal maybe but I do not think it is a stretch to suppose the experiences of New York, Los Angeles and Cincinnati were unique only to them.

Since Mapp police have clearly started dealing with warrants and doing legal searches. Do they still do illegal ones? Sure. Just like there are disincentives to steal people still steal. Police goof or sometimes intentionally sidestep the rules. Nevertheless I think it is abundantly apparent that Mapp caused a sea-change in how police do business. Compared to how it was before the exclusionary rule was put in how can you possibly say the exclusionary rule has no deterrent effect? If it had none police would be willfully kicking in doors yet by-and-large they are not.

You also give no rationale for the need to change the exclusionary rule. Are there hoards of criminals walking free on technicalities? I will go with what you said in Post #89 and apply your standards: "I find that kind of stuff unsupported by actual evidence (outside of egregious anecdotal evidence)..."

Remember there are many exceptions to the exclusionary rule (cited earlier) and there is a "good faith" exception so no one walks on a typo in a warrant.

Now, despite little need you want to move away from something that is working to unsupported methods that to date provably have not worked. But you say we just need to make those methods that fail more stringent. You have not considered the chilling effect that may have on police work if they think if they mess up once they will be sued and lose their house or lose their job. You have not said how it makes sense for child molester to recover thousands or millions in damages from jail because he was put there via an illegal search. You have not said how the child molester even has a reasonable chance of succeeding in his case given the police will be viewed as a heroes for getting him and a jury or judge would be hard pressed to hand money to the guy (or fire the cop). You have not mentioned how society will view sending taxpayer money to such people.

So, we have evidence that prior to Mapp (and similar in Cahan) of rampant police misconduct as regards search and seizures. Since then relatively little. You have not provided evidence of criminals walking free (doubtless there are some anecdotes...we need more). You want to end a system that has worked, if imperfectly, and replace it with methods that have failed completely.

Honestly I see your stance as a step to killing the exclusionary rule. As long as we replace the exclusionary rule with something else we can get rid of the exclusionary rule. Once gone nevermind if the other stuff is ineffective...good luck getting the exclusionary rule back (definitely would be an uphill battle).

I am surprised that conservatives take the side of the issue that wants the exclusionary rule gone. The rule protects property rights which I thought was near and dear to conservative hearts.

Last edited by Whack-a-Mole; 10-29-2009 at 11:38 AM..
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  #114  
Old 10-29-2009, 12:28 PM
Whack-a-Mole Whack-a-Mole is offline
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You also give no rationale for the need to change the exclusionary rule. Are there hoards of criminals walking free on technicalities? I will go with what you said in Post #89 and apply your standards: "I find that kind of stuff unsupported by actual evidence (outside of egregious anecdotal evidence)..."
I found the following which speaks to this and does not support the exclusionary rule as some terrible get-out-of-jail-free card:

Quote:
3. Accuracy of Court’s cost-benefit analysis. As a final matter, we must express our disagreement with the cost-benefit analysis employed by the Court. As noted earlier, the Court considered the costs of exclusion to be substantial. This conclusion is simply not supported, however, by studies that have attempted to quantify the number of prosecutions adversely affected by the suppression of illegally obtained evidence. According to one authority in this area, “[t]he most careful and balanced assessment conducted to date of all available empirical data shows ‘that the general level of the rule’s effects on criminal prosecutions is marginal at most.’” 1 Wayne R. LaFave, Search and Seizure 1.3(c), at 58 (3d ed. 1996) (quoting Thomas Y. Davies, A Hard Look at What We Know (and Still Need to Learn) About the “Costs” of the Exclusionary Rule: The NIJ Study and Other Studies of “Lost” Arrests, 1983 Am. B. Found. Res. J. 611, 622). Even the Court in Leon cited a study discussed in the Davies article that concluded the exclusion of evidence “results in the nonprosecution or nonconviction of between 0.6% and 2.35% of individuals arrested for felonies.” Leon, 468 U.S. at 907 n.6, 104 S. Ct. at 3412 n.6, 82 L. Ed. 2d at 688 n.6.

Even more important is the fact that the costs, regardless of their magnitude, are improperly attributed to the exclusionary rule. We agree with the following statements made by former Justice Stewart:

Much of the criticism leveled at the exclusionary rule is misdirected; it is more properly directed at the fourth amendment itself. It is true that, as many observers have charged, the effect of the rule is to deprive the courts of extremely relevant, often direct evidence of the guilt of the defendant. But these same critics sometimes fail to acknowledge that, in many instances, the same extremely relevant evidence would not have been obtained had the police officer complied with the commands of the fourth amendment in the first place.

. . . The exclusionary rule places no limitations on the actions of the police. The fourth amendment does. The inevitable result of the Constitution’s prohibition against unreasonable searches and seizures and its requirement that no warrants shall issue but upon probable cause is that police officers who obey its strictures will catch fewer criminals. . . . T[hat] is the price the framers anticipated and were willing to pay to ensure the sanctity of the person, home and property against unrestrained governmental power.

Potter Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search-and-Seizure Cases, 83 Colum. L. Rev. 1365, 1392-93 (1983); accord Guzman, 842 P.2d at 674; Oakes, 598 A.2d at 124.

SOURCE: State of Iowa vs. Heather M. Cline (cached copy link...FindLaw demanded a signup from me so I went with this)

Last edited by Whack-a-Mole; 10-29-2009 at 12:30 PM..
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  #115  
Old 10-29-2009, 02:40 PM
Bricker Bricker is offline
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Here's a not-so-hypo hypo:

Johnson, a felon, wants a place to store his guns so that the cops won't discover that he's a felon in possession of firearms. He asks his girlfriend Brittany to help him rent a storage space. To ensure that the cops won't connect him to the space, they agree to rent the space using the driver's license of a third woman, which was recently stolen. That is, the storage unit is rented by identity theft.

The storage unit is later searched by police with no warrant. The guns are found, and Johnson is charged with being a felon in constructive possession of firearms.

Suppress? Or not?

Last edited by Bricker; 10-29-2009 at 02:41 PM..
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  #116  
Old 10-29-2009, 03:01 PM
Whack-a-Mole Whack-a-Mole is offline
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Originally Posted by Bricker View Post
Here's a not-so-hypo hypo:

Johnson, a felon, wants a place to store his guns so that the cops won't discover that he's a felon in possession of firearms. He asks his girlfriend Brittany to help him rent a storage space. To ensure that the cops won't connect him to the space, they agree to rent the space using the driver's license of a third woman, which was recently stolen. That is, the storage unit is rented by identity theft.

The storage unit is later searched by police with no warrant. The guns are found, and Johnson is charged with being a felon in constructive possession of firearms.

Suppress? Or not?
Not following completely.

Are the police investigating the identity theft and come across the storage locker? Seems to me the police would be asking the person whose name the locker is in if it is his/hers. They say "no" the police have probable cause. Presumably they could ask the person whose name it is in if they can open it and receive permission (even though they did not rent it technically it is in their name). All is fine.

Seems legal to me.

How they then connect it all back to the felon I am missing too but in general I see no problem with this.

If the police were just randomly kicking in storage locker doors to see what they could find then I'd say suppress the evidence. It was illegally gotten.

Last edited by Whack-a-Mole; 10-29-2009 at 03:02 PM..
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  #117  
Old 10-29-2009, 10:21 PM
Bricker Bricker is offline
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Not following completely.

Are the police investigating the identity theft and come across the storage locker? Seems to me the police would be asking the person whose name the locker is in if it is his/hers. They say "no" the police have probable cause. Presumably they could ask the person whose name it is in if they can open it and receive permission (even though they did not rent it technically it is in their name). All is fine.

Seems legal to me.

How they then connect it all back to the felon I am missing too but in general I see no problem with this.

If the police were just randomly kicking in storage locker doors to see what they could find then I'd say suppress the evidence. It was illegally gotten.
Police legally searched Brittany and discovered the stolen ID and the rental receipt. The receipt led them to the storage facility. They cut open the padlock and entered the storage unit.
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  #118  
Old 10-30-2009, 09:13 AM
villa villa is offline
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I don't agree with the entirety of the piece either. On some points it's right, on some points, I think it's wrong. But it is a good starting point. And the article by Kamisar has some good critique also. Although I did find Cardozo's proposal (instead of keeping evidence from the criminal justice system by excluding it, the defendant/victim of the illegal search would receive sentence reductions) to be very intriguing.

Any discussion needs to recognize not just the pro's, but also the con's, of the exclusionary rule. But, given the cons, I'm pretty sure I don't want it expanded at all.
I started working my way through the article in a drug induced haze yesterday. It seems to be somewhat odd to the extent it says that the exclusion rule doesn't deter because there are too many exceptions, so we should not look for deterence from it (rather than thinking of removing the exceptions).

I'm with you, by the way, in recognizing the cons. I wouldn't expand it far - I am not sure how far to tell you the truth, but something just seems 'wrong' to me about the reflexive nature of the situation in the OP. Maybe it is something that I just have to suck up.

I'd also support increased use of sanctions against cops for illegal searches etc. However, I think sanctions work to deter blatant abuse, rather than carelessness. And careless disregard of constitutional rights is in some ways more worrying than flagrant disregard.
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Old 10-30-2009, 09:23 AM
Whack-a-Mole Whack-a-Mole is offline
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Police legally searched Brittany and discovered the stolen ID and the rental receipt. The receipt led them to the storage facility. They cut open the padlock and entered the storage unit.
Maybe I am missing something but it all looks legal to me. Police were appropriately investigating a crime which led them to new evidence. Probable cause all the way.
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Old 10-30-2009, 01:38 PM
Bricker Bricker is offline
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Ordinarily, they would have been required to get a search warrant. If Joe Citizen rents a storage facility and the police, investigating a crime, develop probable cause to believe the locker contains fruits of a crime, then they have to get a warrant; they can't just bust open the lock and open the room.
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Old 10-30-2009, 01:50 PM
Whack-a-Mole Whack-a-Mole is offline
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Ordinarily, they would have been required to get a search warrant. If Joe Citizen rents a storage facility and the police, investigating a crime, develop probable cause to believe the locker contains fruits of a crime, then they have to get a warrant; they can't just bust open the lock and open the room.
Well, if the locker is in (say) Sarah Smith's name and Sarah Smith says she did not rent it then whose private property would they be breaking in to? If Ms. Smith, who "technically" is on the paperwork as renting it then is she free to give the police permission even if she says she did not rent it?

As an aside I would presume a warrant would be falling out of bed easy to get in this case. If one was needed not sure why the police just didn't request one.
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Old 10-30-2009, 01:55 PM
Bricker Bricker is offline
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Well, if the locker is in (say) Sarah Smith's name and Sarah Smith says she did not rent it then whose private property would they be breaking in to? If Ms. Smith, who "technically" is on the paperwork as renting it then is she free to give the police permission even if she says she did not rent it?

As an aside I would presume a warrant would be falling out of bed easy to get in this case. If one was needed not sure why the police just didn't request one.
Brittany admitted that she had rented the locker as Sarah Smith. The police contacted Sarah Smith and confirmed that she didn't rent it.

With those assurances in hand, they cut the lock. No warrant.
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Old 10-30-2009, 02:18 PM
Whack-a-Mole Whack-a-Mole is offline
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Brittany admitted that she had rented the locker as Sarah Smith. The police contacted Sarah Smith and confirmed that she didn't rent it.

With those assurances in hand, they cut the lock. No warrant.
Well, you're the attorney and if you say this needed a warrant I'll not second guess you.

Still sounds like Brittany admitted to a crime of renting a locker under a false identity. The police confirmed it. Police cut the lock. Probable cause, due diligence. Sounds ok to me.
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Old 10-30-2009, 03:16 PM
Whack-a-Mole Whack-a-Mole is offline
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Well, you're the attorney and if you say this needed a warrant I'll not second guess you.

Still sounds like Brittany admitted to a crime of renting a locker under a false identity. The police confirmed it. Police cut the lock. Probable cause, due diligence. Sounds ok to me.
I guess I should answer your original question on this.

Assuming a warrant was absolutely required, no two ways about it, no exceptions (legally recognized exceptions as cited earlier) apply then yes, the evidence should be suppressed.

As I quoted Justice Stewart earlier: "The exclusionary rule places no limitations on the actions of the police. The fourth amendment does. The inevitable result of the Constitution’s prohibition against unreasonable searches and seizures and its requirement that no warrants shall issue but upon probable cause is that police officers who obey its strictures will catch fewer criminals. . . . T[hat] is the price the framers anticipated and were willing to pay to ensure the sanctity of the person, home and property against unrestrained governmental power."

That is the price we pay to protect our rights. I forget who said it long ago but our legal system is (supposedly) setup to see nine guilty people go free to ensure one innocent person does not get convicted. You and I are safer from police abuse of power when this is the case and the guilty maybe going free is the price we all pay for that.

Last edited by Whack-a-Mole; 10-30-2009 at 03:19 PM..
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  #125  
Old 10-31-2009, 03:55 PM
jtgain jtgain is offline
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I'm with Whack a Mole on this hypo as well. I don't understand why this should require a warrant. To me, it would be like staying at someone's home without his permission. You have no expectation of privacy in a storage locker that you more or less stole from someone.

But, if in other situations like this they make cops get a warrant, then they should have gotten one here.
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