Apparently it is not admissible.
That I find very surprising - I’d be interested to see how many states would reach the same ruling. This at least means I have learned something today…
If I can be allowed to rephrase myself, there is nothing unconstitutional about such evidence being admitted, under the Federal constitution.
It wasn’t rhetorical; I should have explained more fully. Like what you said, aren’t police more interested in the “arrest” side of things? Aren’t police management measured more on arrest rate than conviction rate? Acquittals (which can stem from suppression of evidence) seem to have much more effect on DAs than the police.
People here seem to think it’s an ironclad means of enforcement, but I see three problems with it:
[ol]
[li]I don’t think it affects police as much as DAs[/li][li]There still seems to be evidence being thrown out, meaning that the rule isn’t preventing illegal searches[/li][li]it puts too much emphasis cases where there is evidence and not enough where there isn’t (which may have been more of the intent of the amendment).[/li][/ol]
But this is a bit away from the actual debate. So back to that.
The exclusionary rule already exists and is already a deterrent. Why does it still get broken? Maybe those cases are mostly at the edges where some interpretation/technicality is at play?
For whatever reason, cops are doing illegal searches that are useless or even counter-productive. Is the threat that the chance of additional evidence found by happenstance will get tossed going to change their minds? If not, the expansion of the rule doesn’t increase 4th am. protection. It just reduces available evidence.
If you are interested in decreased illegal searches, I think an expansion fails. If you are interested in increased punishment of police when those searches happen, an expansion kinda succeeds.
There are a variety of exceptions to police needing a warrant to collect evidence including a “good faith” exception (warrant is defective but police had reason to believe it was ok at the time of the search).
As such the exclusionary rule is already rather watered down. I suppose attorneys may make a pro forma motion to suppress in many cases as part of their duty to do whatever they can. I’d like to see stats on how often suppression is actually granted.
The issue is if you allow a, “Whoops! We goofed on the search. Our bad but hey, look at all this great evidence!” by police then the police can illegally search with impunity and just say “Whoops!” and all is well. That is not a good state of affairs.
Well, the court cited the Federal Wiretap Act so presumably all states have to abide by that. I realize of course a different court might rule differently and ultimately require the SCOTUS to resolve it but at least they seem to be saying this is not a state-to-state thing.
I’m reading it in a different way to you…
I am assuming the Wiretap Act is a state law; that it is providing greater protection than the Federal Wiretap Act. I could be totally wrong here, though.
Whatever it is, I’m getting in over my head here - while I have soem udnerstanding of Criminal Constitutional Law, I have very little knowledge of other parts of Criminal Law. I’ll stand by (though not necessarily vociferously) the idea that excluding such evidence isn’t a requirement under the Federal Constitution, which to me was the tenor of the conversation.
Legislatures, be they state or federal, can act to make other evidence inadmissible. But I don’t think absent such legislation the Bill of Rights would provide any basis for the conversation to be excludable.
All States must abide by the Federal Act. But, states can give greater constitutional protection (but not less) if they choose. So, if someone records another’s telephone (wire) conversation that would likely be admissible evidence in a federal court because the defendant would not have an expectation of privacy in that conversation. The fact that a Pennsylvania state court says he does have an expectation of privacy is not contrary to the Federal Act because it is giving the defendant greater protection under the law.
States laws can provide for greater protection than Federal ones though as appears to be the case in the State/Opinion you cited. see here:
"The Court strictly interpreted the [State] Wiretap Act, noting that state law could provide for greater, but not lesser, protection than the Federal Wiretap Act."
That’s the way I read it, anyways…
Cite? The evidence that the exclusionary rule is an actual deterrent is debatable at best, and unreliable at worst.
And if you really want deterrence, make the police officers responsible for their illegal searches. Make them have to pay money. Make them have to lose their jobs. That would be a helluva lot more of a deterrent than keeping the truth out of the courtroom.
In practical operation, however, the exclusionary rule is a balance between protecting rights and fighting crime. If you made the remedy for a violation of rights to be civil suits against police officers or loss of job, more and more police officers would find doing searches to be not worth the risk of losing your job or a lot of money. The way the exclusionary rule has worked is balancing those two competing interests.
The department would get sued to hell and back by the police unions, the media would have a field day, and people would get fired.
Again, this kind of thinking that the police are rampantly and intentionally trying to violate 4th Amendment rights and have their actions covered up by the payroll department. I find that kind of stuff unsupported by actual evidence (outside of egregious anecdotal evidence) and based in large part by anti-police sentiment.
This is already the case. Police officers are potentially liable for violating the civil rights of individuals. Removing the exclusionary aspect would be reducing the potential consequences.
Do I think that police officers should face more individual responsibility for violating rights? Absolutely. But I also feel it is necessary to remove the evidentiary benefit from such actions, otherwise you are placing enforcement of such things in the hands of juries that will happily nullify in such situations, superior police officers who will not enforce disciplinary measures, and fines which will often be paid, as mentioned above, by defense funds.
Exactly what award do you see a jury giving to a child kidnapper whose door is kicked down? How long a suspension do you think the captain in that district is going to impose on the cop who rescued the pretty blonde girl and made the 6 o’clock news?
I asked for a cite regarding your assertion that “complete inadmissibility of the evidence is a very good deterrent.” You seem to have snipped that part out of my response. If you’re worried that civil actions against police officers for illegal searches would be nullified, I would suggest that a simple motion to suppress in the civil case would resolve the issue.
Again, the jury wouldn’t likely hear about the evidence seized and it’s relevance, just the fact the police conducted an illegal search.
Ahh…gotcha. Thx.
Well, not sure how to cite something that has not existed so there is no evidence one way or another. Simple logic dictates that if there is zero benefit to doing something and only downsides it is less likely to be done than if some beneficial routes do exist to doing that same “something”.
I am reluctant to increase civil liability on police because that could serve to make them gun shy (so to speak) in carrying out their work. An egregious violation I am fine with going after but simple mistakes also happen and those officers would get caught here.
There is a balance to be struck here.
Has not existed?
The exclusionary rule for state prosecutions has only existed since 1961, the result of a case called Mapp v. Ohio.
I didn’t provide a cite because I don’t have one to hand. I don’t know if one exists. If you have a cite for the alternative - that it doesn’t deter it, I will look at it with an open mind. But from way back when reading cases on the exclusionary rule, the impression I came away with was that it was seen as a good deterrent, at least by the justices who support the rule.
Where do you get that I am worried actions would be nullified. I said such actions already exist. You said:
To me that impllies that under the current situation police are not responsible for their illegal searches. They are. What you are suggesting, by reducing the exclusionary rule, is reducing the deterrent. It isn’t an either/or situation. At the moment, we have both exclusion and personal liability. Explain to me why just personal liability would be a greater deterrence?
Even were that to be the case, which I doubt it would be much of the time, it doesn’t alter the other problems with ensuring justice in police misconduct cases. They aren’t easy to get a result in.
*“complete inadmissibility of the evidence is a very good deterrent.” *
That was what was being asked for a cite.
From what I read here that has never been the case.
No.
The court found that the admission of the tape against Deck violated Pennsylvania law – specifically the Wiretapping and Electronic
Surveillance Control Act,18 Pa.C.S.A. § 5701 et seq.
It’s neither a constitutional issue or a federal one. Pennsylvania has merely placed a high degree of privacy on wire communications. The opinion mentions federal law only to explain that states may set the bar higher than federal law, but not lower, which Pennsylvania has done here.
Incidentally, this was a superior court decision which the Commonwealth appealed to the Supreme Court, which denied them allowance to appeal. I’d be curious if anyone knows, under Pennsylvania law, to what extent this case becomes citable precedent, procedurally.
Offered without comment: paragraph 20 of the Superior Court’s opinion in Commonwealth v. Deck:
“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.”
That was always the intent of the exclusionary rule. But I submit that, in practice, it really doesn’t work.
A more severe personal liability would be more of a deterrent. Right now, the evidence that is kept from the fact finders far, far, far outweighs the personal liability of police officers. My point was that if you are REALLY interested in deterrence, making the police officers personally liable for a minimum payout if their evidence is excluded would have a thousand-fold more effect as a deterrent.
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.
It should be on HeinOnline. I will take a look and see what I think.
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.
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.