Yes, it does protect innocents from unlawful searches. Not only are there still penalties for unlawful searches other than the exclusion of evidence, it also removes much of the incentive for unlawful searches. It doesn’t protect against the pure harrassment search, but if the cops are looking for someone who has stolen a particular painting, for example, it acts to stop them kicking down your door at random looking for that painting, because they realize that if you do have that painting, they will not be able to use it as evidence.
If they are just looking to mess with you as an individual, the exclusionary rule adds no protection. It does protect you from being a victim of random searches, because it makes such searches valueless to the police.
Then by that logic, the unicorn rule would work - by removing the incentive of convicting people of owning unicorns it would reduce the incentive to search for those unicorns. I know that’s probably not what you meant but explain how a rule that protects me from illegal searchs by excluding heroin I don’t own is any better than a rule that protects me from illegal searchs by excluding unicorns I don’t own?
The difference is that there is no incentive whatsoever for the police to do random searches for unicorns - there is an incentive to do random searches for heroin.
As I said, if the search is purely to harrass you, as an individual, then the exclusionary rule doesn’t provide extra protection. Such would be the unicorn search - one where there is no desire to find incriminating evidence, but instead just to piss you off. Random searches in a particular neighborhood for drugs, on the other hand, not only can be used as a tool of harrassment, but also may provide conviction possibilities. Remove those conviction possibilities, you reduce the utility of the technique to law enforcement. The pure harrassment searches can be dealt with through the other methods that already exist for dealing with police harrassment.
This is my point - there are other means besides the exclusionary rule to stop illegal searchs. So we should use these other means and stop using the exclusionary rule for the reasons I’ve given.
If a police officer illegally searchs twenty houses and finds evidence of a crime in one of them, he did twenty things wrong (searching the houses, including the one where a guilty person lived) and one thing right (finding evidence of a crime). He should be punished for the twenty things he did wrong but why throw out the one thing he did right?
We throw out the “one thing he did right” because of the incentive effects.
Anyway, this is always going to be a matter of degree. The Court found (rightly in my view) that the other sanctions on illegal searches did not sufficiently deter them. There are also large exceptions to the exclusionary rule. There is obviously a balance to be drawn, if you accept that exclusion does provide an additional deterent in this situation.
Its also important to look at the exclusionary rule in practice, rather than just on paper. I wasn’t present at any of the original stops, obviously, but it is amazing how many times I saw a drug dealer who, according to the police, had the cocaine in plain view in the gym bag. These people make a living from dealing, and never think to pull the zipper up?
Suppose you had a bank robber who stole a million dollars. He spent most of it on himself but he also had a pang of consciousness and donated ten thousand dollars to a local orphanage. When he was caught and convicted should the orphanage be fined ten thousand dollars? Should his charitable act be allowed to succeed at the risk that it will encourage other criminals to rob banks so they can donate money to charity?
Most people would feel that the charitable act was only a very small portion of the bank robber’s incentive and other factors had a much larger influence on his decision to rob a bank or not.
This makes it even worse. If the exclusionary rule is supposed to be a deterent then it should at least be enforced rigorously. A rule that’s only enforced intermittently is going to have very little value as a deterent.
I’m trying to think if the bank would be entitled to the money back in that situation. I think it might well be. It isn’t a fine in that situation, it is restitution. If your car got stolen, and the thief gave it to his daughter, should she be allowed to keep your car when he is caught and convicted?
But the Court thought, and probably rightly, that the desire to use illegally obtained evidence was a very large part of the incentive to perform illegal searches. Can you honestly see disciplinary action against a cop for kicking in 10 doors without a warrant if the tenth has a kiddie porn operation behind it?
Incentive is an interesting idea. Do the police really have “incentives” to perform illegal searches? What does the average cop get for himself personally, from performing an illegal search?
Or, are the police just sometimes lazy, inattentive and error prone?
If you accept the laziness argument, illegal searches happen because of poor training and a lack of negative incentives (fines, suspensions, demotions) rather than because of the existence of positive incentives.
I think I can arrange a trade in exchange for Epernay and the surrounding area. That way I will be too happily drunk to care about the illegal searches any more.