Hell, Esprix, you inspired my whole MPSIMS “Who Wouldja Do” thread – could fixturehood be far behind? 
- Rick
True enough - I am, after all, The Gay Guy! Not bad for somebody who just signed up in January and is still under 1000 posts.
Esprix
Little Nemo wrote:
Not true. You have the option of filing a lawsuit for violation of your civil rights. You may be able to recover money damages, including punitive damages and attorney’s fees.
In fact, it has been suggested in some quarters that a civil remedy (a lawsuit for damages) should be adequate to discourage violations of civil rights, and that the exclusionary rule is not needed.
Well, the writing style and general attitude give off a strong Klaatu/CalifBoomer odor. Just a suspicion – nothing I could get a warrant for.
Plunging like stones from a slingshot on Mars.
Huh. Color me surprised.
People v. Spencer, 84 N.Y.2d 749, 646 N.E.2d 785, 622 N.Y.S.2d 483 (1995).
The facts are more or less as he related them. Spencer was convicted, and his conviction overturned by the Court of Appeals (in New York, that’s the highest court; confusingly, their trial court is the “Supreme Court”). Grounds for the reversal: the traffic stop. Score one for the Bricker.
By the way, AvenueB, the underlying offense was committed in 1989, and the Court of Appeals reversed it in 1995. Little more than “three years ago.”
- Rick
Opps. I misread the story. I thought they pulled over the boyfriend not the boyfriend’s friend. Read first, then comment … aaagh. Bad Glitch Bad.
Well, I’ll be damned. . .maybe I oughta rethink my feelings about AvB.
Nah, screw that.
Although, the police shoulda known going in that they were on pretty thin ice to arrest this chap. They prolly coulda saved themselves a whole lotta trouble if they had offered to drop charges if he’d roll over on his buddy. Live & learn.
Waste
Flick Lives!
Rick, once again, you’re my hero. Don’t ever consider leaving again.
Ave-B: Here’s a couple more examples for ya.
A man is arrested. He didn’t do anything wrong, but he’s so scared that he believes the cops when they tell him “you’re going to jail–you’d better just admit to it now and it’ll be easier on you.” He confesses to a crime he didn’t commit out of sheer terror.
Two women are driving cross-country. They stop in a gas station in a very conservative part of the country (in real life, it was Southern Utah) and the sheriff’s deputy who happens to be in the gas station decides they look like lesbians. He radios in theie license plate number, and the women are subsequently pulled over, strip-searched by the side of the road, and their car is ransacked. They had committed no crime, and were not arrested.
Do you see my point?
Honestly, would you rather a criminal go free or an honest person wrongfully persecuted?
And don’t you value your privacy at all? Or are you willing to have the cops come into your house searching for illegality?
-andros-
Gee. What’s your problem,andros? They weren’t arrested or anything. What’s the harm? You’re just making AvenueB-Dude’s point: how much crime do you see out your window in the Utah desert? Huh? Well?
Tom~
The issue is way overblown. My text from a civil rights law class (mid 90’s) said that the excusionary rule was used in less than 2% of all defense motions to suppress evidence at trial. But to hear people talk about it, you’d think it happens every day.
A lot of effort over one piece of anecdotal evidence, even if true.
To my mind, the various decisions of the Supreme Court form a compelling argument for the exclusionary rule. As in all cases of Constitutional Law, the Supreme Court constitutes a valid appeal to authority. One cannot challenge their view without finding a moral basis with which to challenge the Fourth Amendment itself, which is a much bigger can of worms.
And spooje’s statistic, although unsubstantiated, is a much more telling point. How many searches are thrown out because of the exclusionary rule? Bricker, you seem to have significant legal knowlege. Any support or refutation?
“Reality is that which, when you stop believing in it, doesn’t go away”. - Phillip K. Dick
Just curious. Could someone summarize the Spencer decision? I’d like to exactly what the court’s rationale was.
Perked Ears indicate curiosity - Know Your Cat
…to know exactly…
time for bed
First, a note: spoojie’s claim was that the “…excusionary rule was used in less than 2% of all defense motions to suppress evidence at trial.”
You, on the other hand, are asking how often such motions are successful, as opposed to how often they are made.
In my experience, they are made very frequently; it would be unusual to find a criminal case that went to trial that did not involve a defense motion to suppress evidence. This only makes sense, since inculpatory evidence will tend to convict the accused, and the defense has a substantial interest in avoiding that outcome. Even if a claim for suppression is tenuous, it’s better to roll the dice and make it.
I would venture that the two most frequently-made in limine (pre-trial) motions are those requesting suppression of inculpatory statements made to police, and suppression of the fruits of a search.
On the other hand, very few such motions are granted. They often come down to a credibility contest between the police and the accused, with the police claiming, for example, that consent to search was given, and the accused claiming he never consented. In those cases, it’s rare indeed for the trial court to credit the accused’s testimony over the officer’s.
With the caveat that I have no study to draw on, my WAG is that perhaps 5% of such motions are granted at the trial court level, as least for non-capital felonies in Virginia in the late 1980s - this being the time I was practicing criminal law.
But there’s a second tier to be considered - the appellate reversal. After a conviction, the defendant may appeal. This appeal may only argue the law.
In other words, if you wish to contend that the evidence was admitted in error, you may not argue that the cop lied about obtaining consent – that issue has been decided against you and is unreviewable. You may argue, however, that as a matter of law, the search exceeded the scope of the consent.
Most evidentiary rulings made at trial are not appealed, because there is no basis in law to challenge them. Of the appeals made that do include suppression issues, I would venture a further WAG that slightly less than 5% are reversed, again drawing on my appellate experience in Virginia in the late 1980s. I couldn’t even venture a guess as to what percentage of trial court suppression rulings are challenged on appeal, but it is not large.
Finally, there are the cases in which an in limine motion is decided unfavorably to the Commonwealth by the trial court – that is, the trial judge agrees to suppress evidence. The Commonwealth may lodge what’s called an interlocutory appeal to this decision (after all, if the trial proceeds and the accused in acquitted, there is no possibility of appeal). This is a fairly rare situation, given the paucity of adverse evidentiary rulings to the Commonwealth in the first place, but in such cases, I would speculate that the trial court is reversed perhaps 15% of the time, and the evidence against the accused is allowed.
To the extent that the exclusionary rule results in bad guys going free, it’s almost always sloppy police work. The underlying rationale of the rule is a solid one, in my view. And the anecdotal case cited by AvenueB supports that conclusion.
- Rick
The facts:
Two police officers were on routine patrol in a marked radio car when they received a radio report that a woman had been assaulted with a gun by her boyfriend the previous day. The officers picked up the complainant and, with her in the car, drove around the neighborhood searching for the suspect. The complainant saw the defendant, Clive Spencer, seated behind the wheel of a car and told the officers that he was a friend of her boyfriend’s and that the latter might be nearby.
At this time, defendant’s vehicle began moving. The officers followed defendant and pulled him over using their lights and siren. Defendant halted his vehicle on the next block and both officers approached the car carrying lighted flashlights. Upon shining their flashlights into the interior of the vehicle, the officers observed at the passenger’s feet a clear plastic bag containing green vegetable matter which they believed to be marijuana. The officers asked defendant and his passenger to exit the vehicle.
While defendant was outside the vehicle, one officer observed the butt of a revolver protruding from underneath the driver’s seat on the floor of the car. Defendant was arrested and charged with criminal possession of a weapon in the third degree and criminal possession of marijuana in the fourth degree.
At trial, defendant moved to suppress the physical evidence on the ground that its seizure violated his constitutional rights. The suppression court denied defendant’s motion, finding that the police officers in this case had a right to request information of defendant and could stop his car in order to effectuate that right. The court stated: “at the time the police resolved to exercise their right to request information, defendant’s vehicle was in motion. Under these circumstances, common sense demands that they be permitted to stop it.”
On appeal, defendant assigned error to that ruling.
The New York Court of Appeals agreed with defendent, and reversed his conviction. They found that police/motorist encounters must be distinguished from police/pedestrian encounters when the police are operating on less than reasonable suspicion. The common-law right of inquiry – much less the right to request information – does not include the right to unlawfully seize.
When the police activated their lights to force defendant to pull over, they had seized him within the meaning of the Fourth Amendment. “We have stated, time and again, that the stop of an automobile is a seizure implicating constitutional limitations.” (See Delaware v Prouse, 440 US 645, 653 [“stopping an automobile and detaining its occupants constitute a ‘seizure’ within the meaning of [the Fourth Amendment], even though the purpose of the stop is limited and the resulting detention brief”]).
The court reaffirmed that the rule in New York is that the right to stop a moving vehicle is distinct from the right to approach the occupants of a parked vehicle. Police need only some articulable basis to approach parked car and request information but, absent reasonable suspicion, officers could not forcibly detain or constructively stop defendants by ordering them to remain in car.
- Rick
Basically, that’s what I’d suggest. Let illegal searches be redressed by financial liability (which would be equally fair for all subjects of an illegal search) rather than by evidence exclusion (which is biased in favor of guilty subjects of an illegal search). I can see arguments that the law should favor the innocent or should be impartial towards the guilty or innocent, but I can’t see any logic in a legal practice which favors the guilty.
hmmmm let’s address the underlying point of the OP by examinging the exclusionary rule.
Let us first of all do so without reference to anecdotal evidence. Anecdotes stir emotions, but they are rarely good reason to make policy changes regarding the law, for the simple reason that they don’t tell you anything about all the rest of the situations in which the law is applied or fails to be applied.
There are two main reasons to utilize the exclusionary rule. The first is that using improperly obtained evidence of guilt in court to obtain a conviction results in the judiciary extending the effect of the unconstitutional behaviour, putting its own imprimatur on the violation by allowing its process to be affected by the violation. Thus, when police, for instance, violate the Fourth Amendment with an illegal search, and in the course of the search find evidence of drug possession, and then use the evidence in court to attempt a conviction, if the court knows that the evidence was obtained illegally, and allows its use, it is saying, in effect: “we’ll ignore how this was obtained, state, go ahead and put this guy away if you can.” The USSC, in Weeks made it clear that the federal judiciary were not to be used in that way. Regardless of what the executive did, and how it would be punished for its excesses, the judiciary would remain untainted by such excesses.
The second reason for the exclusionary rule is that, of the potential ‘remedies’ for the abuse of our constitutional guarantees, it seems to have the least negative impact on our criminal justice system. Yes, it prevents the conviction of some who were committing an offense, but frankly the criminal justice system is already filled with such grounrules for a proper conviction; what harm is there in creating one more such groundrule? The usually offered alternative is allowing a person whose rights have been violated to pursue a remedy against the violators in court. Rightly or wrongly, it has usually been felt by the judiciary and the legislative branches that it isn’t a good idea to hamper the executive branch in pursuit of its duty to keep the peace by making its officers worry about their own personal liability for violating the Constitution, nor is it a good idea to have them worried about how their actions might financially hurt their department. After all, we do want the police to be aggressive at apprehending criminals; we don’t want them refusing to go after someone or to search for evidence worried that they are committing a constitutional violation that might cost them or the city/county/state millions of dollars.
What difficulties are there, then, with the exclusionary rule? Well, first of all, as correctly noted, it only applies to those who are on trial for commission of a crime, and it has the effect of making some such accused criminals unable to be successfully prosecuted, as a result of which they are able to remain free in our society unpunished. Thus, it does nothing to remedy unconstitutional activities which do not result in an accusation of criminal activity. Second, it has a tendency to encourage the removal of constitutional guarantees, as reviewing courts grappel with the notion of allowing a person who probably committed a crime to be set free. Numerous examples of this trend have occurred over the last 25 years, as the USSC slowly removes constitutional restrictions on police action in order to avoid the effect of appliying Weeks. And in California, in the mid-80’s, the people passed a constitutional amendment that conformed California’s constitutional law regarding police practices to federal constitutional law, solely because it was felt that the California Supreme Court was too lenient in application of the rule (adopted into California constitutional law), thus letting too many criminals escape punishment.
I am not going to try to argue either that the exclusionary rule should be retained, or that it should be abolished. I will, however raise some (I hope) salient points:
Anytime that police are allowed to violate the constitution and still obtain the result for which they are seeking, they are encouraged to continue constitutional violations. What, then, would prevent the police from searching every home in a block looking for drugs, without any reasonable cause, and then prosecuting anyone who was found to have drugs? Or from stopping every car on a Friday night in the hopes of catching drunk drivers? Or from attempting to force all suspects to confess without providing them an attorney, without worrying as to whether there was substantial corroborating evidence? It isn’t solely the rights of the accused which are at stake when Weeks and Mapp are applied; it is the rights of everyone to be secure from witchhunts and forced confessions and other such egregious activities.
What respect for the laws of society will we have when even the enforcers of those laws can violate the most basic of our laws (the Constitution) and still win a conviction? If you ask me to follow a rule disclosing income to Uncle Sam, what makes me want to do so when I see that the police can obtain evidence illegally? What respect will I have for the officer attempting to investigate a crime when I see him as being the person who busted down my neighbor’s door without warning thinking to find a rape suspect, then used the marijuana plant in the conviction to obtain a drug conviction? How forthcoming will I be as a suspect in an investigation when asked to come downtown for an ‘interview’ if I have heard of people who were held incommunicado for hours in an attempt to get them to ‘admit’ to the crime being investigated? These aren’t anecdotes; they are simply application of the result to our society of removal of the limits the exclusionary rule places on police and prosecutors. And, in the famous line from Roman times, “Quis custodiet ipsos custodies?”
This is not to say that the rule doesn’t result in examples of injustice. Appellate courts have to carefully weigh the impact of their decision against the need for the protection advocated by the defendant. Much of today’s efforts to whittle down the scope of the Fourth and Fifth Amendment can be related back to substantial expansion of rights under those amendments by courts in the 60’s and 70’s.
I cannot sum up more eloquently the basic reason for the rule than did Justice Day in 1914:
OK sorry about the three years thing, my bad.
BUT you have to admit that it was pretty stupid to let the guy go when he had POT and a GUN (and thats another thing, you notice that a lot of POT dealers also have GUNS, I wonder why???)
That is my whole point. OK, maybe the cops did something wrong too. So fine them or something, but don’t let one guys mistake let a criminal just go.
Ummm . . . dude, I know the posts from DSYoung and Rick were full of biiiiig words. But did you manage to read any of them?