OK, maybe I watch too much “Law and Order” but I’ve had something on my mind for a while. It has to do with evidence being suppressed in a case because of lack of, or improper execution of a search warrant.
Here’s my opinion on this, go ahead and tell me why I’m wrong.
OK, I know that the evidence is thrown out because constitutional rights were violated, but I think that there’s a better way to protect those rights. If evidence is found improperly, the evidence shouldn’t be punished. For example, if an officer seizes pot in somebody’s house without a warrant, was the officer in the wrong? Yes. Does that mean the person with the pot wasn’t in violation of the law? No, of course they were. So why, instead of punishing the evidence, why not just punish the officer instead? That way, the guilty party can still be punished, and the officer, or whoever violated the constitution, can be punished to prevent future violations.
Or if somebody is suspected of murder, and the police have irrefutable evidence, and find the murder weapon in somebody’s house, without a search warrant, does that mean that the person didn’t commit the murder? Of course they did. So once again, punish the officers and prosecute the offender using the weapon as evidence.
I think the laws (including what’s called legal precedent) would have to be changed to do what you are suggesting. This has to do with Constitutional rights. See this link about the 4th Amendment: http://www.lectlaw.com/def/f081.htm
It isn’t that evidence is being “punished” when it is suppressed, it’s that someone’s rights were violated. Your reasoning scares me a little because let’s say a cop found a murder weapon (gun) in my house without a properly executed search warrant. But I am not the murderer. Someone planted it in the house to frame me. Under your reasoning, the officer would be “punished,” but so would I! Yet I am innocent. Same with your pot analogy. Let’s say I threw a party, and one of my guests left a kilo in my bathroom. A cop comes in without a warrant after my guests all left. The cop seizes the pot. OK. So he didn’t have a warrant. He gets “punished.” The evidence is admitted. I’m f*ucked!! No. Let’s keep the old law the way it is. Maybe someone else can explain this better. But it’s good that you’re thinking.
Well obviously if the evidence is planted then it shouldn’t be admited.
And as for punishing the cop, that should be decided on the circumstances. If it’s an accident, then a small fine and a warning, or something like that. If it’s on pourpose, then a harsh penalty.
My point is that if evidence (that’s not planted) is found improperly then that doesn’t necissarily mean that the person is innocent, it just means that they get off on a technicality.
That’s the problem. Things are not usually “obvious.” How would I prove the dope or the gun is not mine?
If you’ve been on a jury for a murder trial, you’d learn a lot. For example, some evidence can be inadmissible, but the defendant still gets convicted just based on circumstantial evidence. No gun or other weapon. No eyewitness even. Maybe just fingerprints, tire tracks, lack of an alibi, or an unaccounted for window of time when the crime could have been committed. Also, the prosecution will often highlight any sloppy police work like mishandled evidence.
Try this.
IANAL, but the exclusionary rule has nothing to do with framing or mistakes. If the police come into your home with a warrant and find that kilo of cocaine someone left behind during a legal search, it will be admissable.
I like the idea of punishing the police instead of suppressing the evidence, but I see some problems with it.First of all, what would the penalty be? A small fine (say a couple of hundred dollars)? Ok, I’m a cop , I think A murdered B and the weapon is in A’s house. For a possible fine of a couple hundred dollars, I can search the house illegally,find the weapon and be relatively sure of a conviction.If A is enough of a menace to the community,people may even pay the fine for me.A harsh penalty (making an illegal search a criminal offense)? If I’m a cop, I’m going to be very worried about searching even with a warrant because in many cases, it appears to be impossible to tell if a search is legal in advance. I personally know of a case involving a different sort of warrant,where the officers had a warrant for a particular person’s arrest,went to his residence,were allowed in and arrested the person.There is now a lawsuit claiming that they illegally entered the apartment because the person who let them in didn’t live there and therefore had no authority to let them in.Was the search legal? No one will know until the judge decides.I wouldn’t want to bet jail time on how a judge will see my actions after the fact.
Joel, this is a question that’s been hotly debated in legal circles ever since (I think) 1969, when the Exclusionary Rule was applied to the states. Before that, it was up to each individual state to decide if they were going to enforce the 4th Amendment by excluding illegally seized evidence or through some other method. The case is Mapp v. Ohio, and had to do with some pornographic materials illegally seized from Don King’s girlfriend when the cops were in her house looking for evidence on King for racketeering charges.
I agree with you, Joel, that the Exclusionary Rule is a bad idea. For the illegal (sometimes trivially so) actions of police, society suffers a tremendous cost when the guilty go free. However, as doreen and others mentioned, it’s difficult to enforce the Amendment in any other way. This is because unlike other enforcement schemes, the Rule modifies the cop’s incentive so that it’s in line with the 4th Amendment. He wants to bring the perp to justice; an illegal search will make it impossible for him to do so. If he were looking at personal punishment, he might be willing to take the rip to get someone he thinks is guilty (even if wrong), while he might be afraid to vigorously pursue those searches that are legal. One possible way to avoid this problem is to have cops videotaped at all times, (which I’m for), but which is unrealistic. Until we can have better evidentiary means for policing the 4th Amendment, the way to enforce it is to make it attractive for police to do so, and the Exclusionary Rule does a better job of that than anything else I’ve seen.
–Cliffy,
law-school graduate
My bad. :o
As for that arrest warrant case, some common sense is needed. The charge against them is totally ridiculous.
If a person in the home let them in, why should they doubt that that person had the authority to do so. Or, let me put it this way. If the police start being required to verify the authority of people who let them in houses or apartments, then it would probably have to do something like this:
1)Go to the house, knock to see if somebody’s home.
2)If so, identify themselves and ask if the person who they’re talking to has the authority to let them in.
3)If the person says no, the cops then will need to ask if that person is home.
4)If not, then they need to wait until the person gets home.
5)Or, if the person claims authority to let them in, the police will then need to have that person produce a deed, or title, or some other document verifying that they do indeed own the house, are renting the apartment, or in some other way have authority in the house.
Of course if they police need permission to enter the home to make the arrest, I guess that means that if the guilty person is in the home, they can just refuse permission for the officers to enter.
Of course, I’m sure the guilty party’s defense lawyer wouldn’t see this as being absurd at all.
Those are good points. I just figured that holding the cops responsible for 4th ammendment violations instead of excluding the evidence would be a deturent to cops. But I could see it causing fear for some cops. Especially when defence lawyers can find lots of loop holes and can be good at twisting the facts and spinning the truth (my appologies if I’m offending you. I don’t think this of all defence lawyers, I just know that there are those kinds out there, just like there are some crooked cops).
Anyway, I think that if there was a little more common sence in the criminal justice system cops wouldn’t have to worry.
Joel,
It’s not even just about loopholes and twisting facts and a lack of common sense. It also has to do with the inability to forsee every possible situation ahead of time.There are going to be cases where a search is clearly permissable, and others where it clearly isn’t. There are also going to be gray areas.Suppose a warrant is sought for Apt 2a, but because of a typo, it actually reads 2b and no one notices? Or if police execute a search warrant that it is later decided shouldn’t have been issued? Those decisions aren’t going to be made until after the fact.
I think this was covered in one or both of the following Supreme Court cases:
Mapp v. Ohio.
Wong Sun v. U. S. (this is the case that established the doctrine rejecting “Fruit of the Poisonous Tree.” In the opinion, the Court included this maxim: “One proposition we have consistently rejected is: A search is justified by what it turns up.”
IANAL (but I play one in the classroom)
A few problems:
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As doreen somewhat said, there’s no adequate punishment for an illegal search. Should a cop be fined? That will never work because there will always be others there to bail them out. Should they get jail time? That’s just absurd. You would either jail all the police officers or cripple their power to the point where they’re afraid to do anything for fear of punishment through an illegal search.
So what’s left? Public floggings? -
Always look at the 4th amendment rights through the eyes of an innocent person. Always. That’s what it’s designed for. You’re driving down the street, not doing anything, and the police pull you over for no reason whatsoever. They search you with no probable cause and search your trunk without reasonable suspicion. Just because they can. If they don’t find anything, you’re free to go. If they find something, they get a slap on the wrists and you get convicted. Why? Because what once was an illegal search is now OK to do. And the police will keep doing it again and again and again on innocent people until they hit a guilty person.
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This is a big one you may never have considered. The police don’t know that the search is illegal when they’re doing it. I have a book right next to me filled with hundreds of pages worth of times when the police searched someone and then, 3 appeals and 5 years later, they find out it was an illegal search. And the reason it’s an illegal search is because the Supreme Court is looking back at #2 and thinking “would this be an acceptable search if it were done to someone who was innocent?” Why should the police be punished for a tactic they had no clue was wrong?
Again, more good points. The reason I started the post here wasn’t because I thought I had a great idea and was going to defend it, if so I would have posted this in the Great Debates forum. Instead, I had an idea and wanted to find any flaws in it. And you’ve guys pointed out some very good ones. I’ll say one final thing. In regards to typo’s. In my opinion, obvious, and I mean obvious, 1 letter typo’s should be considered valid. And what I mean by obvious, is a “1” instead of an “I”, or a “0” instead of a “O”.
Oh, and about punishing the police. If they violate the 4th amendment on pourpose, they should be suspended or fired. The light slap on the wrist should go to police who made an honest mistake (of course it would need to be progressive each time the same officer made the same or similar mistake.)
But for now, I guess the legal system is just tricky and slippery enough, that is best to leave things the way they are.
To be honest, I was affraid I’d get tons of responses chewing me out. I’m glad that didn’t happen. 
Yeah, we can play this game with ALL the amendments:
1st: Government shouldn’t be punished because they: a) outlawed your religion (hey – let’s ban Islam – they’re all just terrorists anyway); 2) threw you in jail for expressing unpopular opinions (how DARE you question our foreign policy in the Middle East!); 3) stopped you from holding a protest march. They really ought to just pay a small fine or civil penalty for the inconvenience to you.
2nd: So they took away your guns? They’ll pay you the fair market value, less depreciation!
3rd: Those National Guardsman we posted in your house? We’ll pay you what we normally outlay for barracks!
4th: So we broke down your door and seized evidence – big deal. Those cops got put in 30 day suspension and desk duty!
5th: So we forced you to testify that you ran that red light/took an improper deduction – you were guilty anyway. And when we tried you four times, since the first three verdicts were not guilty – hey, we paid your (court-accounted “reasonable”) attorneys’ fees!
6th: So we took 7 years to bring charges against you, and didn’t let your lawyers cross our witnesses. So what – you were guilty anyway, and we again paid your reasonable attorneys’ fees!
7th: We decided not to let you argue your case to a jury. Big deal, the judge is a reasonable guy, and found you guilty! And we saved taxpayer time and money!
8th: OK, OK, we chopped off your hand for theft. But you were guilty. And the state has provided you with a prosthetic, free of charge!
9th: So we told you that if Congress didn’t pass a law allowing it, you can’t do it, and threw you in jail. What makes you think you ought to be able to do that?
10th: Ditto to 9th.
11th: So we let an individual sue you, State, in our courts. You were guilty, weren’t you? What’s with all this “sovreignty” BS – you should know the national government controls you!
12th: So what if you won the most Electoral Votes – the person who gets the most total popular votes ought to win – it’s only fair!
13th: So you were enslaved. You got food and shelter as part of the bargain, didn’t you?
14th: So your State threw you in jail and impounded all your assets without trial. I mean, you chose to live there, didn’t you?
15th: So they stopped you from voting because of your race? Big deal, your guy wouldn’t have won anyway.
16th: Um, er, we forgot to tax your income. You’re complaining about this?
17th: So your legislature picked your Senator in a back-room deal, rather than by election. We spared you those nasty mudslinging ads, didn’t we?
18th: Um, er, this one just took away rights. No harm, no foul, right?
19th: So they wouldn’t let you vote because you’re a woman? Big deal, your guy wouldn’t have won anyway.
20th: So we cut short the past administration’s term. They were lame ducks anyway.
21st: Hey, drinking’s bad for you. And we do have these nice carbonated soft drinks as an alternative.
22nd: So Clinton’s now into his seventh term. Come on, he keeps winning elections! What’s all this “president for life/dictator” stuff?
23rd: You people in DC are just a bunch of government bureaucrats – you oughten to vote for the adminstration. I mean, you’ve all got jobs in the government anyway, what do you care who runs it?
24th: So you couldn’t pay to vote – I mean, these new-fangled idiot-proof voting machines are expensive! If you can’t afford to pay, you’re obviously too complacent to really have a stake in this election!
25th: So the President’s nuts. What do you want, some kind of a coup?
26th: You 18 year olds are too young and uninformed to vote. I mean, we have all these nice Army jobs for you to occupy your time with – don’t worry about where the government might want to send you!
27th: So they jacked up their salaries right after they got elected. You can vote them out next election in two (or six) years!
28th (tentative): You flag-burning bastard! So what if you rotted in jail! We paid you back for the flag you destroyed!
God! It’s good to be in the U.S.!