IANAL but as far as I know the current status of the exclusionary rule is based upon Mapp v. Ohio. I am surprised this was not a unanimous decision by the SCOTUS. Seems to pretty clearly show a case where police went way beyond what they should have IMO.
From link above:
Law suits. The fear of which leads police departments to take steps to deter their officers from violating civil rights. For the record, the types of violations are so blatant that the cops would likely be arrested on criminal charges before it ever became as wanton as you’re suggesting, at large anyway. In a more realistic situation the cops and the police department would in reality be sued and the department would be fearful of their officers exposing them to that liability.
IIRC you cannot sue the police for actions taken in the normal course of their duties.
If you could do as you suggest the police would be swamped with lawsuits.
If this is correct, it suggests an idea for better enforcement. The judge could be given the power to not only declare a piece of evidence inadmissible, but also (optionally) declare the actions taken to obtain that evidence exempt from the protection against lawsuits.
Police have found ways to get “around” most procedural actions. For instance if a cop wants to find a body or a gun, he simply lists “drugs” or a specific type of small type of drug in additon on the warrent.
The reason is in the past judges have said “Police shouldn’t be looking in places where it can’t be found.” So if you have a warrent to look for a gun you couldn’t look in a matchbox, but if you also list drugs on the warrent, you CAN look and “find” other things.
In cases like the OP, the police will simply work around it. OK we know we can’t use the gun but let’s lie to the suspect and tell him what we got and see if we can cop a plea bargain.
You may be able to say “Gee I see we found these drugs (legally) that actually belong to your mother and grandmother.” But if you’d confess we’d be much too busy to prosecute them.
In reality there is usually something the police can work with.
Because the logic of the exclusionary rule is that the consequence of an illegal search is that any evidence found is excluded. So if there’s no evidence then there can be any exclusion - ie no consequence.
So you agree that the threat of lawsuits over illegal searchs is sufficient to prevent those searchs even when the exclusionary rule is not applicable?
Then what purpose does the exclusionary rule serve? Why have a flawed procedure to address a problem that’s already being better addressed by other means?
I’m not aware of any examples of the police busting down the doors of citizens solely to harrass them. If they were engaging in this type of behavior, unrelated to any legitimate police business, then the individuals involved would be subject to lawsuits and criminal charges.
However, if the police bust down someone’s door without a warrant because they think they’ll find evidence of illegal activity, that’s connected to their duties as police. I’m not so sure they’d be subject to a lawsuit for that. Even if you sued the municipality and they settled, would the money make up for your lost freedom? Paying someone damages, yet prosecuting them and locking them up, doesn’t really make up for the violation of their constitutional rights.
But their actions stop being the normal course of their duties when they know or should have known what they were doing was illegal. Police can be sued for damages for illegal searches, police brutality, false arrest, etc. See Monroe v. Pape, 365 U.S. 167 (1961).
One huge reason is that the vast majority of people affected by illegal searches cannot afford a civil suit. Especially from jail.
Anyone with an actionable civil claim will find numerous lawyers willing to take their case on a contingent fee basis.
That’s absolutely false.
Anyone with a likely-to-win claim that will win more money than the cost to litigate it will find numerous lawyers willing to take their case. The gap between a case that might win, and a case that a contingent-fee lawyer will take, can be quite large.
Let’s say that in the 4th house of the random search, these cops find 20 women tied up in the basement and 400 pounds of marijuana in the indoor grow house. It is all inadmissible.
So, these cops have no incentive to randomly break into hundreds of houses because anything they find gets tossed.
The idea of a monetary fine for a police officer couldn’t be feasible. Imagine the first time that a victim wanted help, but the officer hesistated because he couldn’t afford the fine, and wasn’t sure about the legality of entering.
Or the cop who, on a hunch, breaks down a door and saves the life of a good, loving 7 year old girl being held hostage by her abusive step father. Then he has to pay his $1,000 fine the week before Christmas, leaving no money for his kids’ toys. More news at 11…
That’s true of any lawsuit. But a large city settles hundreds of these types of cases every year. If it’s notorious enough, you don’t need to do much more than file the complaint and get some press coverage. It took a week for a lawsuit to be filed in the Oakland shooting, and I bet that will get settled after all this dies down.
But my larger point stands. Freedom is more important than money.
Any suit filed by a contingent-fee lawyer, sure. That’s the point: the ability to sue in civil court is not a particularly good deterrent when the victims tend to be poor.
People absolutely can and do sue police for civil rights violations. Rodney King sued the LAPD for $86mm and settled for, I believe, less than $10mm. I’m assuming that your definition would cover “a traffic stop” as normal course of duties and not “beating a man”, which obviously isn’t normal.
Absolutely not. The threat of a lawsuit per se or policies put in place due to that threat are largely sufficient to ensure improper conduct is dealt with after the fact.
The exclusionary rule protects the constitutional rights of the accused. It’s not a deterrent to keep cops in line. It’s a prophylactic that guarantees that if an American’s civil rights are violated the state cannot use its unconstitutional action to the detriment of the accused. A fine or a criminal complaint doesn’t protect my civil liberties.
I’m not seeing the distinction you’re making here.
I disagree. The issue is illegal searchs. The exclusionary rule was set in place to prevent illegal searchs not prevent convictions - the fact that it prevents convictions was just a means to the end of deterring illegal searchs from occurring in the first place. While it is a prophylactic policy it is intended to have a deterrent result.
This is the straw man people always go to, that somehow letting evidence in without a warrant would lead to torture by police. Hogwash. You want to protect suspects from unfair interrogation, you shore up that side of things: protect the right to silence with exclusion, fine; perhaps more usefully, have taped interrogations, since police try to bend the rules anyway. But that doesn’t mean searches without warrants need the same rule.
And that “NBC’s Law & Order” nonsense where one fudging of rules can create a cascading chain of inadmissibility for evidence that was pursued legally afterward on information received questionably–that’s so inane I assume the TV writers are exaggerating.
Since 1961 is not “hundreds of years.” I expect this policy won’t survive hundreds of years, but what do I know?
Courts have been excluding unlawfully obtained evidence since at least the 1700s. The Bill of Rights was adopted in 1789, for instance, and English courts had already been excluding self-incriminating evidence that was obtained through state compulsion before then. Mapp v. Ohio applied the exclusionary rule to the states through the 14th amendment but it’s completely disingenuous to pretend it was some new idea.