And how does the exclusionary rule stop this? If the police want to harass you by ransacking your car they’ll go ahead and do it. Rogue cops who are just looking to intimidate people are unaffected by the exclusionary rule. The only cops who are affected by it are those who are attempting to conduct a criminal investigation - they’re wrong for violating civil rights but they’re the least part of the problem.
As I noted earlier I was subjected to an illegal search. It was my car and actually I was not even in it. The car was legally parked in front of my friend’s house and when we walked out the cop was sitting next to my car in his cruiser with a spotlight on it. I ran down assuming someone had done something to my car. The cop proceeded to grill me and my friend and proceeded to order me to open up the car to his search. I had done NOTHING wrong. I had no warrants, the car was free of so much as a speeding or parking ticket. This was in a very nice neighborhood, I was a well dressed and well spoken white boy and the car (my parent’s car actually) was a nice car in pristine shape.
So yeah, cops will harass people. Where I was happened to be notorious for their bored cops (they pulled over my school bus driver in the same area for doing 15 in a 10 despite a sign when you entered the area telling you the speed limit in their town was 20…town is Golf, Illinois if anyone here knows it).
So clearly even with the exclusionary rule cops will do this. There are plenty of examples beyond my own anecdotal experience. But I think it is safe to say that most cops do not bother because it is a waste of time. In my case I had a bored cop who thought he could roll a teenager. He tried his level best to find something to get me for but I really had done nothing wrong. I shudder to think what that guy would be like if the exclusionary rule were lifted.
Nor do I think I found the only shitty cop in America.
Claiming a mistake doesn’t get you off any other criminal prosecution, why should it get you off this one?
I think ditching the rule and criminally prosecuting the cops is the way to go. It provides a huge deterrent to breaking the rules while not letting the guilty off.
Sounds good at first blush but as mentioned if the cop nabs a pedophile who would dare throw the cop in jail?
Not to mention mistakes do happen. Maybe the cop honestly (i.e. not meaning to) oversteps his authority. I do not think he needs to go to jail for it.
If cops were actually liable criminally for an illegal search and seizure I would think that would have a dampening effect on them doing their job. If every time they searched someone they wondered if they could go to jail they would be less likely to do it when the situation called for it. Result = even more bad guys go free.
I go back to the OJ Simpson situation to see about unlawful entry by police: one that was ruled acceptable by the court.
Your ex-wife is dead. Cops come to your house and you aren’t at home. They see your car parked on the street with the rear tires 6 inches further from the curb than the front tires. There is a thumbnail size red spot on the driver’s side door.
This is reasonable cause to jump over an exterior fence and enter your home.
Now, this is under CURRENT rules. What would happen under a lesser rule?
The same people who dare throw people who beat the shit out of pedophiles in jail. “Justifiable” crimes are prosecuted all the time; why is this different?
The criminal justice system already includes allowing for mitigating circumstances.
I don’t think the rules are that complex or difficult to understand, but would welcome the viewpoint of someone more knowledgeable.
If by “lesser rule” you mean the one I’m advocating, I imagine the same thing would happen, as I haven’t said anything about what rules should apply to the searches and seizures themselves.
I don’t think that if the exclusionary rule is tossed that the cops will be openly flouting the 4th amendment to the point of opening themselves to criminal prosecution.
What will definitely happen is outright testilying by the police when they need evidence. You’ve got a suspect in a murder? Go knock on his door. Did you hear that muffled sound inside? Someone must be in danger. We Must Break Down the Door to Investigate.
Now, as a judge, you might think that he’s lying his ass off, but can you be sure enough to send him to jail? Especially if he found 16 girls tied up in the basement during his illegal search; could you imagine the media response to the locked up cop who freed them?
I used the OJ Simpson example because I thought that it was painfully obvious that those 4 cops made up a reason to search his home. The judge disagreed. So how much more would it take to throw a cop in jail for an illegal search?
And what good does that do for the harmed party? I’m serving 5 years for cocaine possession with intent, but at least the cop got a warning letter in his file.
As Northern Piper points out, the system elsewhere in the world seems sensibly to build in discretions that serve to protect both sides of the debate. In a case of clear and deliberate “cowboy” style violation of rights, the discretion would typically be exercised in favour of exclusion. In the case of trivial clerical errors, it would typically be exercised in favour of inclusion. And cases in between are decided on the basis of weighing a set of competing considerations.
The jurisprudence of other (ie, non-US) countries is well-developed in this area of the law, and it works perfectly well. Decisions of high authority spell out the principles to be applied.
Don’t panic, people. As has been said in US jurisprudence in a slightly different context, it is not necessary for a country to have a Miranda rule (or, I interpolate, an exclusionary rule) in order for that country to be considered civilised.
And, as has been noted previously, such discretion is also employed in the U.S. The only difference appears to be at what point the irrevocable line is drawn. Since I do not read of actual “Dirty Harry” type cases in which clearly culpable criminals have been set free every day, I suspect that the rule is working OK in the U.S., as well.
In converse to your observation, Miranda and the exclusionary rule are not really setting hordes of criminals loose on society. Different nations may use different laws without one being clearly superior to the other.
Criminal charges against a cop? That makes me nervous. Egregious or wantonly reckless acts aside, cops have enough personal risk in their job in the first place. Putting in an added jeopardy of personal liability for mistakes would unduly hamper law enforcement. I want a cop to be free to act in situations without worrying whether or not he could end up in jail or significantly fined for a mistake. (Again, please remember I’m not including flagrant rights violations.) If a cop goes to jtgain’s door for some reason, hears muffled screams inside, it’s in society’s interest to allow the cop freedom to make a judgment call regarding entry that does not include balancing personal liability.
This is one aspect of the rule’s elegance. If a cop knows there’s evidence, it’s in his interest from a law enforcement perspective to follow the rules. Not out of fear for himself, but out of a sense of why he is a cop in the first place—successful prosecutions. If he just thinks there’s evidence, the rule protects all those innocent families from unwanted searches, because his acting on that hunch would be fruitless. If he can’t convince an impartial magistrate that there are sufficient grounds for a search, then there shouldn’t be a search. His personal motivation is directed at further evidence gathering, not going in anyway, as the evidence will be useless. Drop the rule and the impetus for crossed Is and dotted Ts drops. Those rules may piss off Dirty Harry, but they’re there to protect our rights.
Can someone elaborate on the so-called balancing test that’s been brought up? As I understand it, there are some non-substantive wrongs that will allow evidence in, but in the supermajority of cases, an unlawful search or confession or whatever results in exclusion of evidence. If a policeman comes into my house unlawfully and sees the Maltese Falcon on my nightstand, there is no amount of justification for the recovery of the Falcon that would allow it in as evidence.
I can agree with that, but what can we do to make sure that the cop really hears those muffled sounds and isn’t just making it up as a pretext for illegally searching my home.
Ooooyyyy.
It depends. Is a trial about the accused & the crime that is supposedly the important thing? Or is it about the game played by the professionals in the adversarial system? I choose the former. Truth above all.
As you say, no other country does this. Because it’s hopping mad.
I am relieved that somebody’s trying to let evidence in if it’s relevant, reliable, & revelatory, no matter where it came from. If it fails to be any one of those three things, on the other hand, than I share your concern.
It’s better to convict or acquit persons based on all the good evidence available than to force juries to guess what the prosecutor knows that he’s not telling. The present system gets us false acquittals, & false convictions as an overcorrective response. So the country has no faith in the reliability of the courts now, & everyone is scared. That’s a bigger deal than cops doing warrantless searches.
Right? Left? :rolleyes: Whatever. Presently I am an economic leftist & a law-and-order conservative; & pragmatically I moderate my views in a democracy, & I re-examine them from time to time. Am I left, right, center, or fringe?
How about we try classifying it as “responsible” (letting all relevant, reliable, & revelatory evidence in the case) versus “irresponsible” (excluding relevant, reliable, & revelatory evidence because of the acts of a third party). Better description.
Easy fix. Legalize discretionary searches. The constitution forbids “unreasonable search & seizure.” If nothing’s seized, is any search really unreasonable, or is it an extension of patrol duties?
OK, that extent of a rethink seems like pushing it even to me. But it’s a direction worth thinking about.
The phrase “unreasonable searches and seizures” might, in some twisted way be one single term, but the second part of the amendment unquestionably separates the two as a warrant is required for either, and that warrant must specify the “place to be searched” AND the “persons or things to be seized”.
It would be a terrible construction to say that police may search with impunity as long as they don’t seize (And how would that work? I’m merely searching sir. I see you have a child tied naked to your sump pump. Well, have a nice day!)
and that they may seize as long as they don’t search.
I think that’s a central difference in first premises. If one starts with the principle that rights trump the criminal process, the rule’s purpose and effect come into sharper focus. If one starts with the principle that justice should prevail over rights, then the rule is an aberration.
Though imperfectly and falteringly applied, the former has been much more prevalent in jurisprudence and political thought from the inception of the nation. It underlies not just the Fourth Amendment body of law, but reaches to virtually every corner of criminal law, and undermining the principle in the pursuit of the latter strikes many of us as running contrary to long-standing, founding ideals and values.
That it’s just “about the game played by the professionals in the adversarial system” is an unfortunate (and I daresay naïve) oversimplification of the historical and rational underpinnings of our legal system, and doesn’t help your otherwise well-intentioned arguments. There are a wealth of lay texts about the legal system and a host of approachable civics texts available—understanding your society better will give you a broader view of how legal shenanigans are a sharp minority of incidents. It’s not that your overall point is invalid per se (disagreeable, yes, but not necessarily inconsistent), but that dropping such base and emotionally impulsive sentiments into posts detracts from the points you’re trying to make.
My problem with the exclusionary rule is that while it protects innocents from unlawful search, it also puts innocents at risk by releasing criminals back into the public. So from that standpoint, it seems like a poorly thought-out remedy.
I also don’t want to see cops hauled up on criminal charges every time an error is made.
But would it be so bad to open the tort system up to police departments and civic/state/federal governments? The exclusionary rule seems to me to be the kind of remedy that the government comes up with, because in the end it doesn’t really hurt the government at all. It hurts the public. If the police run amok and start searching people willy-nilly, they don’t get fired, the state doesn’t get penalized - the guilty people go free, and the public suffers the consequences of both the searches and the breakdown of justice that results.
I’d rather have a mechanism in which a person who is unlawfully searched can take the state to court and receive damages. Then let the chief of police answer to the mayor when the city loses 5 million dollars in revenue because the cops were encouraged to take liberties. Punitive damages could be awarded based on the history of the department for doing these things, and for signs of clear negligence or ‘looking the other way’ while someone’s rights are violated.
So the guilty guy goes to jail, but if the cop searches someone without a warrant and doesn’t find anything, well, that cop’s going to be in a world of trouble because his superiors are going to be in a world of trouble.
What’s wrong with that?
OK, if you want technical. Here are extracts from a case from 1978 which is still good law in Australia. The case was Bunning v Cross, and its facts uninterestingly dealt with a case of drink driving, but the principles are universally applied, mutatis mutandis. It was a decision of the High Court (the equivalent of SCOTUS).
"Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.”
And later, the court descended into some detail about the content of the discretion, raising four considerations of universal application (the fifth was specific to drink driving cases):-
"The first material fact in the present case, once the unlawfulness involved in the obtaining of the “breathalyzer” test results is noted, is that there is here no suggestion that the unlawfulness was other than the result of a mistaken belief on the part of police officers that, without resort to an “on the spot” “alcotest”, what they had observed of the appellant entitled them to do what they did. The magistrate himself described what occurred as an unconscious trick, a phrase
which, whatever its precise meaning, is at least inconsistent with any conscious appreciation by the police that they were acting unlawfully. This impression is consistent with the evidence as a whole; no deliberate disregard of the law appears to have been involved. The police officers’ erroneous conclusion that the appellant’s behaviour demonstrated an incapacity to exercise proper control of his car may well have been much influenced by what they observed of his staggering gait. Unlike the magistrate, they were unaware that the appellant suffered from a chronic condition of his knee joints which could, apparently, affect his gait. If the unlawfulness was merely the result of a perhaps understandably mistaken assessment by the police of the inferences to be drawn from what they observed of the appellant’s conduct this must be of significance in any exercise of discretion. Although such errors are not to be encouraged by the courts they are relatively remote from the real evil, a deliberate or reckless disregard of the law by those whose duty it is to enforce it.
The second matter to be noted is that the nature of the illegality does not in this case affect the cogency of the evidence so obtained. Indeed the situation is unusual in that the evidence, if admitted, is conclusive not of what it demonstrates itself but of guilt of the statutory offence of driving while under the influence of alcohol to an extent rendering him incapable of having proper control of his vehicle.
To treat cogency of evidence as a factor favouring admission, where the illegality in obtaining it has been either deliberate or reckless, may serve to foster the quite erroneous view that if such evidence be but damning enough that will of itself suffice to atone for the illegality involved in procuring it. For this reason cogency should, generally, be allowed to play no part in the exercise of discretion where the illegality involved in procuring it is intentional or reckless. To this there will no doubt be exceptions: for example where the evidence is both vital to conviction and is of a perishable or evanescent nature, so that if there be any delay in securing it, it will have ceased to exist.
Where, as here, the illegality arises only from mistake, and is neither deliberate nor reckless, cogency is one of the factors to which regard should be had. It bears upon one of the competing policy considerations, the desirability of bringing wrongdoers to conviction. If other equally cogent evidence, untainted by any illegality, is available to the prosecution at the trial the case for the admission of evidence illegally obtained will be the weaker. This is not such a case, due to the mistaken reliance of the police, when they first intercepted the applicant, upon what they thought to be their powers founded upon s 66(2)(c) of the Act.
A third consideration may in some cases arise, namely the ease with which the law might have been complied with in procuring the evidence in question. A deliberate “cutting of corners” would tend against the admissibility of evidence illegally obtained. However, in the circumstances of the present case, the fact that the appellant was unlawfully required to do what the police could easily have lawfully required him to do, had they troubled to administer an “alcotest” at the roadside, has little significance. There seems no doubt that such a test would have proved positive, thus entitling them to take the appellant to a police station and there undergo a “breathalyzer” test. Although ease of compliance with the law may sometimes be a point against admission of evidence obtained in disregard of the law, the foregoing, together with the fact that the course taken by the police may well have been the result of their understandably mistaken assessment of the condition of the applicant, leads us to conclude that it is here a wholly equivocal factor.
A fourth and important factor is the nature of the offence charged. While it is not one of the most serious crimes it is one with which Australian legislatures have been much concerned in recent years and the commission of which may place in jeopardy the lives of other users of the highway who quite innocently use it for their lawful purposes. Some examination of the comparative seriousness of the offence and of the unlawful conduct of the law enforcement authority is an element in the process required by Ireland’s case.
Finally, it is no doubt a consideration that an examination of the legislation suggests that there was a quite deliberate intent on the part of the legislature narrowly to restrict the police in their power to require a motorist to attend a police station and there undergo a “breathalyzer” test. This last factor is, of course, one favouring rejection of the evidence. However, it is to be noted that by the terms of s 66(1) the legislation places relatively little restraint upon “on the spot” breath testing of motorists by means of an “alcotest” machine. It is essentially the interference with personal liberty involved in being required to attend a police station for breath testing, rather than the breath testing itself (albeit by means of a more sophisticated appliance), that must here enter into the discretionary scales. "
You asked.
Oh, and tomndeb, I wasn’t suggesting that other ways are better than the US’s way. The tone of the OP and some posters tended a little towards the catastrophic, and I was merely pointing out that if the proposed change referred to by the OP comes to pass, there is a body of experience elsewhere in the world that suggests that the anxieties expressed are perhaps a tad overstated.
This conflates the issues of rights-protection and security. You’re correct; the release of criminals is a cost of protecting the rights. But it is not possible to protect those rights without some cost. Not wishing to pay those costs, or trying to shift the cost to some other area is laudable, but not achievable without incurring other harms to the same society you are trying to protect. Protecting those rights without incurring any costs is not possible.
I don’t believe there is any jurisdiction that has an absolute bar on tort suits against the police. However, a vast expansion of these suits would not only hamper our court’s function, but also result in a general deterrence to law enforcement in grey areas. The police have little motivation to search my home without proper authorization. Another aspect of the cost of protecting these rights is that when I am unlawfully searched but suffer no direct damage, I have no remedy. I am willing to pay this cost because my overall rights are still protected (via the decreased motivation for the police to search on a mere hunch), and by a police force that is unhampered by a general fear of lawsuit if they make a mistake.
Thanks for the detail!
We do have a good-faith exception, which does take into account a policeman’s reasonable belief that he was acting lawfully. I believe it’s based on a reasonable person standard from the policeman’s viewpoint, but can’t recall specifics at the moment or the name of the case. Sherpa? Something like that.
I realize you were heading in a different direction in your post but, as I’ve said, the exclusionary rule doesn’t protect innocents from unlawful searchs. An unlawful search can still occur. The exclusionary rule protects innocents from having the evidence of their crime appear in court - and being innocents, the evidence of any crime committed by them doesn’t exist.
Allow me a hypothetical: assume that some legislature passed a law making it illegal to own a unicorn. Now assume some rogue cop decided to start harassing people by busting into their homes and telling the occupants he was looking for illegal unicorns. These people got justifiably mad and took the case to court. And the judge said that he was going to put a stop to this - he was issuing a ruling that anybody who had a unicorn found by this cop would have their case automatically dismissed. The judge explained “now this officer has no motive for searching for unicorns so his illegal searching will end.”
For most people, the exclusionary rule offers as much protection as the judge’s unicorn rule. If you’re innocent of any crime, then you don’t have any heroin or illegal weapons or counterfeit money or child pornography or dead hookers or unicorns in your house and a ruling to exclude these things from a trial gives you nothing.