First, all defendants in criminal proceedings are presumed innocent until proven guilty by the evidence beyond a reasonable doubt. So claiming a practice “favors the guilty” strikes me as a touch inflammatory.
Second, accepting “favors the guilty” at face value, does the exclusionary rule really favor the guilty? Let’s say I legally own a gun, which I have not used to kill anyone. The police illegally search my home and find the gun, perform ballistics testing on it and find that it’s similar (but not conclusively so) to a gun used in a murder the previous week. I am arraigned for the murder. My attorney argues the evidence against me (the gun) was illegally obtained and should be excluded, and the judge agrees. The case is dropped and I walk. Did the exclusionary rule favor the guilty or did it free an innocent man?
As for the man behind the Ave-B sock puppet, isn’t it obvious he’s really Antonin Scalia?
And you’re serious about fining them? How in hell are they going to pay the fine? I’m not sure if you’ve noticed or not, but most cops don’t make a princely salary. And how much of a fine is adequate? How about the fine that should be paid to the surviving relatives of Patrick Dorismond? What sort of price would you put on an innocent person’s life?
And yes, if one person (in this case a police officer) screws up enough to get a conviction overturned, then you let the convicted go. I realize that you don’t much care for the protections afforded by that pesky ol’ Constitution, but them’s the breaks. Until, that is, you manage to get into a position to shake things up.
I have been thinking about the story in this case and I am not so sure I agree with the ruling.
The officers were acting in good faith in the investigation of a crime. They didn’t breach their authority in the matter. They didn’t pull his car over at random to see if anything would be in plain view. They pulled him over so they could get information about a potentially dangerous felon. I don’t agree that this constitutes a seizure but rather is in line with a stop and detainment (for the purposes of gathering information, in this case). Of course, the courts disagree and so my opinion really doesn’t matter, but I am curious about one thing:
Why do the NY courts feel a traffic stop is equivalent to a seizure? Bricker’s post says they do, but not why they do.
It concerns me, a little, that a witness can hop in a car and flee a scene and the police can’t stop them to find out what they know. Sure, this probably isn’t a common occurance, but it seems to be an odd ruling to me. If DS or Bricker could fill me in on the "why"s I would appreciate it (or tell me where I can go read it myself).
Well… the “potentially dangerous felon” had committed his crime a day before Spencer was arrested. So it’s not as though there were a great sense of urgency pushing the police to talk to the witness right away - not, in other words, a case of exigent circumstances.
Here’s the deal. In general, police may always simply walk up and start talking to you. They need no cause, no warrant, no suspicion. As long as you are free to disregard their questions and walk away, they are free to converse with you.
The moment that your liberty is restrained, and you are compelled to stop and talk with them, the Fourth Amendment comes into play.
You ask about a witness leaping into a car and speeding away. That wasn’t the case here. First, Spencer was not a witness to any crime. The girlfriend only speculated that, since he was a good friend of her boyfriend’s, he would know where to find the boyfriend - a far cry from being a witness to a crime.
If the police are permitted to force people to stop and answer questions whenever they please, what meaning does the Fourth Amendment have?
The reasonableness of any seizure must be judged by balancing its intrusion on the Fourth Amendment privacy interests of the person involved against its promotion of legitimate governmental interests. Important factors in that balancing analysis are the effectiveness of the procedure in relation to the governmental interest to be promoted, and the degree of intrusion of the procedure on the individual subjected to it, measured in terms of both its subjective effect and the degree of discretion vested in the officials charged with carrying it out.
Perhaps instructive is the 1985 Supreme Court court case U.S. v. Hensley. The Court upheld the Terry stop of an individual based on a “wanted flyer” indicating that the defendant was a suspect in a past robbery. But in dicta, they addressed the nature of the governmental interest in investigation of past criminal activity and made an important distinction that is important in understanding the concept here:
In this case, there is no reason to believe that the girlfriend (or, indeed, anyone else) was in danger of further harm from the suspect. There is similarly no evidence to support the inference that the suspect was “armed and dangerous” over a day after the event.
The decision to stop Spencer because he was a possible source of information regarding another suspect’s location do not create a “preventative governmental interest in the stop” and do not constitute reasonable police activity under the circumstances.
It’s also worthwhile to point out that the Fourth Amendment “…does not permit the stopping of potential witnesses to the same extent as those suspected of crimes”. See LaFave, Search and Seizure § 9.2**. In U.S. v. Ward, FBI agents, using sirens, pulled Ward over in order to question him privately about some federal fugitives. The court held that the seizure, which resulted in the agents’ recovering a false selective service registration card from the defendant, was unreasonable:
Critical to the Ward decision, and here also, is the absence of a crime actually in progress. Similarly, there is no indication here that the officers reasonably believed the suspect was about to disappear, thus permitting them to briefly stop defendant in order to “freeze” an ongoing or dangerous situation and acquire more information in contemplation of further action. The record is devoid of any indication that the suspect presented an imminent threat to public safety.
If you’re interested in more detail, I can recommend Wayne F. LaFave’s excellent tome Search and Seizure, which does a great job of laying out, in sometimes excruciating detail, the law of search and seizure!
But the problem with the exclusionary rule is that it does NOT “punish the police”, they get paid whether the bust is good or not. The exclusionary rule punishes the general public, who are now burdened by yet another criminal. What should be done is ALLOW the eveidence, but fine the police for contempt. Perhaps the fine might be paid out of the overall police budget, instead or the indiv making the bad bust, but the effect is the same, a reluctance to make bad busts as they will cost you.
So you get to decisde what is “sufficient crime” to ignore the Constituition? From your posts, I’ve gotten the impression that you live in NYC, and from what I’ve heard of NYC the only crime wave there is the preponderance of people being killed by cops. I don’t see how getting rid of the exclusionary rule will help.
Other points that have brought up by various people:
“Why don’t we have just civil remedies?”
Oner problem I see with people having no recourse other than a civil suit is that it will have the effect of essentially putting people’s civil rights up for sale.
“It only helps the guilty!”
By eliminating the incentive to violate people’s rights, it helps all of us.
“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.” I do.
Glitch-
Bricker already gave a response to your points, but I think that there were parts left unaddressed, and am therefore addressing them. Hopefully this won’t make you don’t feel double-teamed.
Perhaps they were, perhaps they weren’t. Does the fact that they were acting in good faith absolve them of responsibility? They were negligent.
Obviously the judge disagreed.
Do you think that this is a right that the police should have? Should they be able to arrest anyone they want (and yes, a traffic stop is an arrest) just so that they can ask them questions?
He was deprived the use of his car for a substantial amount of time, wasn’t he?
I guess it would be nice to know the legal definition of seizure (I take it you weren’t referring to epilectic seizures? :))
This is an interesting objection. The question is raises is whether the police have any personal investment in haveng their arrests lead to conventions–are cops “crimefighters” or guys doin’ a job. I think that enough of them see themselves as “crimefighters” that the desire to have arrests lead to convictions is suffiecient motivation to at least try to follow procedure. On the other hand, having 5-10% of your arrests thrown out on 4th amendment grounds does not make you unwilling to make future busts, as long as they appear to be legitimate.
On the other hand, the fear of substantial finnacial reprecussions may well be stronger than the desire to fight crime. Thus, cops will quit arresting anyone for fear they will make a mistake–something they know even the best intentioned police do sometimes. This only gets worse if you fine departments. How long do you think a guy is going to keep his job after he is responsible for a $25,000 fine? What about the second time? Even if he isn’t fired, he is going to see himself and be seen as responsible when raises are skimpy that year, or other budget problems come up. Such a plan would lead to cops too timid to be any good.
Oh, yeah… . The Ryan, lighten up. Glitch was asking a sincere question, not stating an arguement. He was looking for a legal answer from someone with legal experiance. The “C&P coupled with rhetorical questions” approach is appropriate when someone has made a long, rambleing, completly illogical set of statements that they expect you to swallow hook, line, and sinker. It is insulting when applied to a reasonable poster asking a reasonable question, which had already been answered in a reasonable, thoughtful manner by a professional in the field. When you consider that Glitch had acknowledged that earlier informed post, implictly agreed with it, and gone out of his way to discover additional reading material to futrther expand his understanding, your behavior looks like you are trying to pick a fight. Fight with AvenueB–he likes it.
I’ll leave looking up and quoting the statistics to Rick, since it’s more up his alley (HEEEEEELLLLLP, Rick!! ), but I toss in this slightly off point notation for its similarity to the present discussion.
For about 35 years, the law of the land has been that police are required to advise a person upon arresting him that he has a right to stay silent, that if he gives up that right, it could come back to haunt him, that he has the right to have an attorney present when questioned, and if he can’t pay for one, one will be appointed for him by the state (Miranda v. Arizona, citation omitted). Recently, there has been advanced a challenge to Miranda’s warnings, a challenge being heard by the USSC. In the course of discussing whether Miranda should remain the law of the land, numerous police agencies have argued that it SHOULD remain the law.
Now, this may seem illogical, but it is not. Yes, telling a suspected criminal that he should shut up may seem to be a hinderance to an investigation, but in reality the Miranda warnings have stabilized what was becoming a danger zone for prosecution: potentially coerced prejudicial statements. With Miranda, everyone knows what to do and how to do it; if they don’t do it, they have no one to blame but themselves when the case gets tossed for insufficient evidence.
A similar argument exists for the exclusionary rule regarding Fourth Amendment violations. When police officers know that the price of unconstitutional action is potential loss of conviction, they tend to mind their manners better. I believe statistics suggest this to be the case. Thus, Weeks and Mapp have actually done us some significant service: reduced the number of unconstitutional activites by police.
A fact which may be damn hard to keep in mind when you see an accused rapist avoid prosecution because the evidence in his garage was found because some officer forgot the knock and announce rules in place for his jurisdiction.
The end result of this rule would be individual cops deciding whether a particular crime is worth risking a fine. This would be giving cops permission to break the law with impugnity. If the evidence is that important, do the search right.
Not sure I can add any statistics – but a quote from the case actually makes me wonder if AvenueB-dude was an amicus curie! Talking about a law that would allow confessions to be admitted even if no Miranda warnings were given: “[the failure to enforce this law] may have produced – during an era of intense national concern about the problem of run-away crime – the acquittal and the nonprosecution of many dangerous felons.”
Details: the case DS is talking about comes from my own back yard – U.S. v. Dickerson (166 F.3d 667, 4th Cir. 1999), a Fourth Circuit decision from last year. Very briefly, Dickerson was an accused bank robber in Alexandria, Virginia, who made an inculpatory statement to police before getting his rights read to him. The district court suppressed his confession and the evidence that the police developed as a direct result of the confession.
Here’s where it gets interesting:
Congress has the authority to make rules of evidence for the federal courts. The Supreme Court has the authority to create rules of evidence for the federal courts, as long as those rules don’t conflict with an act of Congress. The Supremes also have the authority to interpret the Constitution, which Congress cannot override.
In 1966, the Supreme Court decided Miranda, which as we all know stands for the proposition that unless a suspect is explictly informed of his rights, he can’t be presumed to be making a voluntary confession. Was the Supreme Court creating a rule of evidence, subject to Congress’ ability to override, or was it announcing a rule of Constitutional interpretation, which Congress couldn’t touch?
No one was sure, especially Congress. In 1968, two years after Miranda, they passed the Omnibus Crime Control Act. One title of this act included section 3501, which was an attempt to overrule Miranda. Section 3501 said, basically, that a confession is admissible in federal court if it’s voluntary, period - no need to read any rights.
The Justice Department, on the other hand, was pretty sure Miranda was a rule of Constitutional dimension. So they chose to never invoke § 3501. If they got a confession with no Miranda warnings given, they never argued to the court that, because of § 3501, the confession should be kept. So the constitutionality of § 3501 was never tested.
Now we fast-forward to 1999. In other posts, I have explained that for an appeals court to consider a point, it must have first been raised and argued below, in the trial court. Failure to raise a point at trial generally means it’s waived on appeal. But this is a rule of judicial economy only – not a hard and fast law.
The government appealed the suppression of Dickerson’s confession, arguing that the judge made an error in deciding that Dickerson hadn’t been read his rights.
The Fourth Circuit Court of Appeals reversed the suppression – but for a different reason. Even though neither side brought up § 3501, the Court considered it in on their own motion. (Actually, they granted leave to proceed as amici curiae, friends of the court, to two organizations, the Washington Legal Foundation and the Safe Streets Coalition, who were pushing to have Miranda overturned. A “friend of the court” is a not a party to the actual dispute, but rather someone who has an interest in the court’s reaching a particular decision).
The Fourth Circuit decided that Miranda was an application of the Supreme Court’s federal evidence rule-making power, not their Constitutional interpretation power, and that § 3501 was within Congress’ power to make. They lambasted the Justice Department for not defending § 3501.
“Fortunately, we are a court of law and not politics * * * [the failure to argue does not] prevent us from considering the applicability of § 3501 on appeal. Even where the parties abdicate their responsibility to call relevant authority to this Court’s attention, they cannot prevent us from deciding the case under the governing law simply by refusing to argue it.” Dickerson, 166 F.3d 667, 669.
Since a federal circuit court’s decisions are binding on lower corts in that circuit, we now have the unusual situation in which Miranda is good law in the rest of the country, but 18 U.S.C.A. § 3501 governs confessions in federal court in Maryland, Virginia, West Virginia, and North and South Carolina.
The Supremes generally will step in when the circuits have significant differences in decisional law, and they’ve done so here. As DS pointed out, there are a number of police groups arguing that Miranda ought to be upheld, and that it encourages good, consistent police procedure. There are a number of citizens’ organizations arguing, no doubt at the behest of AvenueB and his ilk, that the streets will not be safe unless § 3501 is upheld.
I have a good discussion on “good faith” at home in a book. I’ll post it tonight.
Short version: Yes, the police acting in good faith does absolve them of responsibility.
Obviously, and I was wondering why.
Sorry, but prior to my discussion with Bricker I would have taken it as a stop & detain which the police are authorized to do and which is not an arrest.
However, Bricker set me straight. The police cannot intrude into a person’s freedom to such a degree for the purposes of an interview when the danger of the further commission of a crime is slight.
If a cop stops you on the street you are not being arrested you are being stopped and detained (of course, you have the right to ignore his questions, but under some circumstances that can be taken as a sign of guilt). One of the key factors of a stop and detain is that it must be brief. It doesn’t sound to me that the police intended to detain him for very long so the traffic stop isn’t a seizure for that reason.
Seizure is well, to seize. I.e. to take. In this case to take somebody into custody or put them under arrest.
No, the right to avoid an interview by being in a moving car disturbed me. If you were a witness on the street and tried to walk away the police can stop you. If you hop in a car they have to wait until the car stops. It struck me as bizarre. Again, Bricker has set the record straight on that.
In this case, what the officers did wrong, constitutionally, is that the crime was long since over, if I am understanding Bricker’s post properly. If the police had of felt the need for an immediate interview because of the immediate danger of a crime being committed then the stop would have been justified.
The intrusion of the stop and detain has to be balanced with the danger of a crime being committed in not stopping the person for an interview.
My favorite illustration of the differences between stopping, arrest and such is the music store example.
Scenario: It is late at night and a call has come over the radio that a music store has been broken into.
The patrol car sees a person running down the street in the vicinity of the music store with a guitar case in his arms.
The officers pull over and stop him so they can interview him. He is not under arrest at this point. This is the stop and detain.
Now, suppose this guy is late for a music recital, but since he got a speeding ticket the other day he decides to ‘cop’ an attitude and tells the officers “You can’t make me answer your questions. I am leaving.” (this is his constitutional right). The officers can then take the refusal to account for his suspicious acts and arrest him since they have other elements of probable cause (namely running in the night with a guitar near a music store break in).
Now, at this point the police can either take him to the music store and have the owner try to identify the guitar as stolen property. Since it isn’t the police will then let the guy go.
The police could also take him away for an interrogation. They are under no obligation to use the most expedient method to clear him (i.e. to investiate the guitar first). The police have great latitude in how they conduct their investigation so as to capture the correct suspect. If they want to take you downtown first so you can sweat it out in a jail cell while they track down if the guitar was actually stolen or not, they are justified in doing so, since it is possible that having the suspect confined to a cell for a hour or so, that by the time the police get back he will be ready to talk. However, the police cannot dilly-dally either and are expected to actually go about eithering clearing you or confirming your guilt. I.e. they aren’t supposed to just throw you in a jail cell for a few hours while they sit around doing nothing.
An interrogation and an interview are similar but procedurally different for the police. During an interview most officers will be very polite since they want the person to cooperate. However, during an interrogation the police officer essentially uses their perceived authority and other psychological edges (for example, officers stand while you sit, it is very intimidating haveing had the dubious honor of being on the receiving end of an interrogation) to get the person to talk. There are rules of engagement on what a police officer may or may not do during an interrogation.
I think the vast majority of Supreme Court decisions are on-line at [url [Findlaw](http://www.findlaw.com/casecode/supreme.html)."]http://www.findlaw.com/casecode/supreme.html]Findlaw. You may search the decisions three ways: by cite, by party name, or by full-text search. The cite for a Supreme Court case is xxx U.S. yyy, where xxx is the volume number and yyy is the page number of the (hard copy) book the decision is in.
Findlaw also has a very limited number of U.S. Circuit cases [url ["]http://www.findlaw.com/casecode/courts/index.html]](http://www.findlaw.com/casecode/courts/index.html) here. These are a craps shoot; not all circuits started putting their decisions on-line, and so far as I can tell they don’t use the Federal Reporter citation system. Normally, to look up a circuit court case, you would use the citation (for example, 166 F.3d 667), go to the 3rd series Federal Reporter, volume 166, and flip to page 667. Or you would insert your trusty Westlaw CD-ROM. But this requires either access to a law library or a pricy CD-ROM.
The Findlaw circuit court decisions may be searched at no charge, but you’re limited to a full text search.
State law presents yet another murky problem. Again, your best bet is a law library. Some states have extensive decisional law on the Internet at no charge, others practically nothing. Most cites for state decisions will contain both the state’s own reporting system and the regional reporter that covers the state. For example, Virginia cases are reported in both the Virginia reporter and the Southeastern reporter. A Virginia Supreme Court case might look like: Commonwealth v. Smith, 236 Va. 12, 513 S.E.2d 219 (1999). The “236 Va. 12” part tells you that the Virginia Report has the case in volume 236, page 12. “513 S.E.2d 219” similarly means the Southeastern Report, second series, volume 513, page 219. The 1999 refers to the year the case was decided.
A Virginia Court of Appeals case cite might look like: 26 Va. App. 304 (1999).
Virginia is not, alas, a leader in the Internet revolution. They post text versions of all appellate cases from about 1996 onwards, but have no real search or citation capability.
Several states have gone to “vendor neutral” citation systems. Oklahoma, for example, now cites the first case heard by the court of criminal appeals in 1999 as: 1999 OK CR 1. The second case is 1999 OK CR 2, and so forth. Eminently sensible, if you ask me… but I bet the folks at Westlaw are seething.
I also find the following a great site for Supreme Court workup: Oyez Oyez Oyez. This site offers links to relevant news stories regarding cases before the court, which helps in obtaining underlying facts regarding decisions pending.
), but I toss in this slightly off point notation for its similarity to the present discussion.