Does the recent U.S. Supreme Court decision, Herring v. U.S., signal the end of the "exclusionary rule"? (For those who aren't students of criminal procedure, the "exclusionary rule" is what keeps evidence that was obtained in violation of the U.S. Constitution from being used against a criminal defendant at trial and, if applied, often results in the entire case against them being dismissed).
Perhaps, yes. It is precedent for the idea that the criminal does not necessarily go free where the constable blundered or, as in this case, where the constabulary erred. The warrant upon which Mr. Herring was seized (i.e., "pulled over"), was entered into the computer erroneously, but not in bad faith, by someone other than the officer that pulled him over. Okay, so what? Well, according to the majority, the purpose of the exclusionary rule was to deter intentional misconduct by law enforcement. I guess I agree with that, but here's the point of separation. When we speak of institutions, we can find intent on the part of the higher ups (such as chiefs, and other administrators), or a more nebulous form of intent on behalf of the entire institution where they have failed to put systems in place which will limit the degree of intrusions into the private lives of law abiding people. Not telling police departments, as the Supremes could have, that their failure to develop and implement systems (through software, double-checking by human beings, etc.) to better ensure that information entered into the widely available databases may result in bad guys going free was an opportunity squandered. Incidentally, implementing such systems would also save a lot of valuable law enforcement time by making sure that their time is not wasted barking up the wrong trees. So, everybody could have won: The general public could have won, the police (in a broader sense) could have won, and an occasional undeserving criminal defendant could have won. The latter, according to the ingenious Warren Court, was a worthwhile price to pay for a freer society. The over-arching principals in force are that (1) there is no perfect solution to the problem (and, yes, to my conservative friends who don't know what it's like to be jacked up by cops for no reason, there IS a problem) and (2) that the American values of privacy and freedom that serve to allow us all to live without a rational worry that we will be subjected to the random and otherwise unfettered curiousities of law enforcement are worth sacrificing a small amount of security.
Another discussion that has emerged in the wake of Herring is: "what else might we do to deter police misconduct which violates the U.S. Constitution?". Here are some thoughts:
1. Deprive the offending officer of a paycheck for every violation.
2. Make the offending officer where a patch on his uniform that reads, "I violate people's consitutional rights".
3. Fire the offending officer.
4. Make the offending officer pay money damages to the defendant.
5. Exclude "some" of the illegally obtained evidence. (Hmmm...just the wrapper?)
6. Make the jury aware of the violation and tell them that they may decide to acquit the defendant on that basis. (That might work...maybe...uh, in a marijuana possession case.)
My experience teaches me that prosecutors, judges and cops hate the exclusionary rule so much, that they'll do nearly anything to get around it. What we see in reaction to it are very narrow readings of the rules, and usually a tortured reading of the facts (a very common work-around is to argue that officer didn't actually pull the person over for a dubious legal reason, they pulled them over for a totality of dubious reasons which, altogether, amount to one legal reason) . The less honest police officers will lie to cover up their violation. It's not at all hard to imagine how that happens. If they were lazy about understanding and respecting the Fourth Amendment, who's to say that they won't be just as lazy about understanding and respecting their duty to be honest (when under oath) and otherwise? A rule which does not burden the public safety as much as the "exclusionary rule" might solve this problem. However, would a cop lie to keep his job? Would he lie to avoid public shaming? Would he lie to save money? Would a judge or prosecutor avoid engaging in intellectual dishonesty in order to protect the cop from these various punishments? I say, let's not bother finding out.
Showing posts with label law enforcement. Show all posts
Showing posts with label law enforcement. Show all posts
Monday, February 9, 2009
Tuesday, September 2, 2008
Thanks to the MANY who have made our roads safer.
Traffic fatalities are at an all time low. That's great news. I am grateful for the efforts of those who have worked hard to make our roads safer and, yes, counted among them are the men and women of law enforcement. But, let's not exaggerate their contributions, especially when doing so tends to suggest that more aggressive enforcement of traffic laws is the one and only solution to the insurmountable problem presented by the inherent dangerousness of millions of large one to two ton vessels of steel and glass whooshing by each other at high rates of speed with soft-shelled humans inside. Keep in mind that more aggressive enforcement of laws leads us further and further into a police state where our privacy rapidly erodes. Losing sight of, and otherwise foresaking, the most cherished values of this great land is an insidious problem that rivals traffic fatalities. The idea that, in the name of further reducing traffic fatalities, we should look toward aggressive enforcement of traffic laws and checkpoints as the only solution to the problem of traffic fatalities is a tragedy unto itself.
Yes, law enforcement officers face risks and are paid relatively little for the challenging and vital nature of their work. No question about it. However, let's not forget the countless others who work hard to reduce traffic fatalities. A spokesperson for the CHP, Daniel Barba, perhaps without intending to do so, completely disregarded the important efforts of the auto industry for making safer cars, the traffic engineers for designing safer roads, the caltrans workers for building and clearing those roads, the EMS personnel for providing triage, the Firefighters for their vital work, the members of the medical profession for their contributions, the tow truck drivers for clearing disabled vehicles, and the many common carriers (such as cab drivers) for offering alternatives to driving. All of these folks deserve some of the credit for reduced traffic fatalties, if not a good deal of it. Nevertheless, the CHP seems quite willing to claim all of the credit where it states that seatbelt usage, speeding, and DUI are THE 3 leading factors resulting in traffic fatalities, and that they and they alone have an impact on the reduced instances of these dangerous behaviors. It is without question that law enforcement serves to deter dangerous behaviors by their ongoing enforcement efforts, and their visibility on the roadways. Their education campaigns are likely beneficial as well. And it may very well be that more of these activities will further reduce traffic fatalities. What concerns me, and hopefully concerns you, is that mindless support of aggressive law enforcement diminishes our freedom; the very freedom that hundreds of thousands of Americans have died on the battlefield to defend.
Yes, law enforcement officers face risks and are paid relatively little for the challenging and vital nature of their work. No question about it. However, let's not forget the countless others who work hard to reduce traffic fatalities. A spokesperson for the CHP, Daniel Barba, perhaps without intending to do so, completely disregarded the important efforts of the auto industry for making safer cars, the traffic engineers for designing safer roads, the caltrans workers for building and clearing those roads, the EMS personnel for providing triage, the Firefighters for their vital work, the members of the medical profession for their contributions, the tow truck drivers for clearing disabled vehicles, and the many common carriers (such as cab drivers) for offering alternatives to driving. All of these folks deserve some of the credit for reduced traffic fatalties, if not a good deal of it. Nevertheless, the CHP seems quite willing to claim all of the credit where it states that seatbelt usage, speeding, and DUI are THE 3 leading factors resulting in traffic fatalities, and that they and they alone have an impact on the reduced instances of these dangerous behaviors. It is without question that law enforcement serves to deter dangerous behaviors by their ongoing enforcement efforts, and their visibility on the roadways. Their education campaigns are likely beneficial as well. And it may very well be that more of these activities will further reduce traffic fatalities. What concerns me, and hopefully concerns you, is that mindless support of aggressive law enforcement diminishes our freedom; the very freedom that hundreds of thousands of Americans have died on the battlefield to defend.
Wednesday, April 16, 2008
The Wrong Kind of Sticker?
A couple of months ago, I cited a real world example of the usefulness of a certain sticker that I make available free at my office, and for sale on ivlawyer.com. The stickers in the photo are next to the front door of a house that was recently searched by the police pursuant to a warrant. It happens that neither the "Back the Badge" sticker, nor the American flag, deterred law enforcement from obtaining the warrant, nor executing the search. I can't say I'm surprised. On a related topic, I do sometimes wonder if the CHP's 11-99 Foundation license plate frames help lead-footed Mercedes drivers escape traffic stops and tickets. Apparently, for an $1,800 donation, you get a license plate frame and a special wallet and a badge which is perfect for handing to a CHP officer who pulls you over for speeding. $1,800!? Is this another example of rich people buying favor with the police? It is little wonder that those license plate frames are only seen on very expensive cars. Granted the organization provides assistance to the families of CHP officers in need, but is it really working toward the greater benefit of public safety and good government? If the wealthy folks who can afford to give $1,800 to the families of CHP officers (who, by the way, are already indirectly and directly compensated through pretty decent benefits packages by the California taxpayer) really care so much about the families of fallen CHP officers, can't they care, instead, in private? Or is their real motive to get out of speeding tickets by publicly displaying their support of this organization? Is their confidence that they won't get either pulled over or cited for speeding putting the rest of us at risk?
Friday, January 25, 2008
Yes, I actually was wearing my seatbelt!
Well intentioned members of law enforcement are often quick to point out that persons injured in car accidents were not wearing their seatbelts. Doing so, they probably believe, will increase seatbelt usage. And it might. The problem is sometimes they speak too soon and misinform the public. I am aware of multiple cases where the local CHP has blamed lack of seatbelt usage, at least in part, for the accidents' associated injuries. In certain of these cases, as in the recent one cited above, there were seatbelt shaped abrasions across the abdomens of the accident victims. I am increasingly concerned about this pattern of misinformation because it may distort the true safety record of vehicles involved in these accidents. Consider that if an injury to a vehicle occupant is blamed on lack of seatbelt usage, when they were actually wearing their seatbelt, the true causes of the injury may not actually be investigated. I suggest, therefore, that members of law enforcement be more circumspect before they write in their accident reports, or state to the media, that the injured occupants weren't wearing their seatbelts unless they really know that to be true. A careful investigation by a trained accident investigator should be able to answer this question. I think doing so will work in favor of auto-safety and will not risk hurting the feelings of persons whose bodies already hurt (i.e., by implying that their own carelessness caused their injuries in cases where that is not true).
Saturday, December 29, 2007
There ought to be a law...
There ought to be a law that says that every time a new law is enacted by the legislature, the legislature should be required to make room for it by unenacting another law from the books and making it widely known that they have done so. Let's enact a page limit on law. And, no, this proposal isn't to preserve shelf space nor trees. In fact, since law is primarily stored and accessed online nowadays, there really is no limit to the number of laws we can enact before we run out of shelves or trees. So the question is, when is enough law enough?
Some, like me, would say that there is already enough law. Laws that are either obsolete, dead letter, overly intrusive or restrictive (read: puritanical) by present day standards, and/or unenforced should be deleted from the "books". Not only should laws be widely known and understood, they should be limited to what's necessary to deter and prevent that which is truly socially undesirable, not just speculatively so. Without these limits, every day ordinary behavior (whether completely desirable or not) is rendered illegal, perhaps punishable by a small fine only in many instances, to the point where nearly everyone (if not everyone) is arrestable at least once, if not throughout, a typical day. Does this sound like a "free society"? At present, it is difficult to get through the day without violating at least one law. As an example, have you ever driven anywhere without exceeding a posted speed limit by at least 1 mile per hour, even if for only a few seconds? If you say "yes", well... I won't call you a liar because you're reading my blog. But, you get my point... Completely law abiding behavior, in every sense of the word, is a virtual impossibility in a society that has millions of pages of description of what constitutes unlawful behavior.
Since we live in an era where everyone is busy re-defining the problem and the language we use to describe it, I'll follow suit and go ahead and propose that we should stop calling legislators "lawmakers". Let's, instead, call them "law quality control officials" (LQCO's). Rather than thinking of new laws to enact, our elected LQCO's should be thinking of ways to improve on existing ones, by clarifying some and unenacting others. I'm just not sure we really need even one more law. And sometimes, as any cattle rancher will tell you, you must occasionally thin the herd.
Every New Year we lawyers pay attention to what laws are new on the books, and if there are any deleted or lapsed (which does happen on occasion), it generally goes without ceremony, any effective notice to the masses, and not due to any such brilliant new legislation such as the one I am proposing.
So here's a peek at SOME of the new laws coming our way in 2008:
Cell phone use in vehicles. SB 1613 and 33. Before you run out to buy a new Bluetooth device (that actually works in a satisfying way - and doesn't just make you look like an electronic gadget loving dork who is not really paying attention to what's happening around him), let me put you at ease by telling you that the laws concerning cell phone use while driving are not set to go into law until July 1, 2008. So enjoy your last six months of relative bliss while you drive with one hand on the wheel and the other pressing your cell phone to your ear, or with no hands on the wheel while sending a text message or an email...but please do so safely. And to the teenagers with provisional licenses: You will have to hang up and drive altogether (hands free or not)... at least until you are no longer a teenager, that is. July 1 is the end of an era. Let's call it the "pre-hands-free era", where it is unclear (at best) whether there was a resultant increase in the numbers of traffic accidents. Interestingly, in recognition of the Fourth Amendment's prohibition of unreasonable warrantless searches and seizures, these new laws disallow law enforcement's use of these laws as a pretext to pull someone over. In other words, they have to "know", and not simply "suspect", that you are violating one of these laws before they pull you over on that basis alone. I must say, I do like this built-in privacy protection. Different.
School Zones. AB 321 will now allow local jurisdictions to adopt an ordinance establishing a speed limit of 15 miles per hour in a school zone. [So, you must slow down even when driving Miss Daisy through a school zone].
Street Racing. SB 67 reauthorizes a law that lapsed in 2006. It allows police to impound a vehicle for 30 days when a person is arrested for street racing, exhibition of speed, or reckless driving. [See, laws can lapse...in theory anyway.]
Smoking in Vehicles. SB 7 prohibits anyone from smoking a cigarette, a cigar, or a pipe in a vehicle, whether in motion or not, in which there is a minor. The smoker can be fined up to $100. Police can only cite for this violation in connection with a stop for a suspected violation of another driving offense. [For enacting this brilliant law, the Legislature truly deserves the Nanny Award... do we really need this law? Is it really going to prevent even one instance of lung cancer? Who knows?]
Traffic School. AB 645 prohibits a court from allowing a driver who commits a two-point violation from attending traffic school. Two-point violations include drunk driving, hit-and-run, speed contests, evading an officer, and vehicular manslaughter. [Uh, this wasn't happening anyway, by the way].
Some, like me, would say that there is already enough law. Laws that are either obsolete, dead letter, overly intrusive or restrictive (read: puritanical) by present day standards, and/or unenforced should be deleted from the "books". Not only should laws be widely known and understood, they should be limited to what's necessary to deter and prevent that which is truly socially undesirable, not just speculatively so. Without these limits, every day ordinary behavior (whether completely desirable or not) is rendered illegal, perhaps punishable by a small fine only in many instances, to the point where nearly everyone (if not everyone) is arrestable at least once, if not throughout, a typical day. Does this sound like a "free society"? At present, it is difficult to get through the day without violating at least one law. As an example, have you ever driven anywhere without exceeding a posted speed limit by at least 1 mile per hour, even if for only a few seconds? If you say "yes", well... I won't call you a liar because you're reading my blog. But, you get my point... Completely law abiding behavior, in every sense of the word, is a virtual impossibility in a society that has millions of pages of description of what constitutes unlawful behavior.
Since we live in an era where everyone is busy re-defining the problem and the language we use to describe it, I'll follow suit and go ahead and propose that we should stop calling legislators "lawmakers". Let's, instead, call them "law quality control officials" (LQCO's). Rather than thinking of new laws to enact, our elected LQCO's should be thinking of ways to improve on existing ones, by clarifying some and unenacting others. I'm just not sure we really need even one more law. And sometimes, as any cattle rancher will tell you, you must occasionally thin the herd.
Every New Year we lawyers pay attention to what laws are new on the books, and if there are any deleted or lapsed (which does happen on occasion), it generally goes without ceremony, any effective notice to the masses, and not due to any such brilliant new legislation such as the one I am proposing.
So here's a peek at SOME of the new laws coming our way in 2008:
Cell phone use in vehicles. SB 1613 and 33. Before you run out to buy a new Bluetooth device (that actually works in a satisfying way - and doesn't just make you look like an electronic gadget loving dork who is not really paying attention to what's happening around him), let me put you at ease by telling you that the laws concerning cell phone use while driving are not set to go into law until July 1, 2008. So enjoy your last six months of relative bliss while you drive with one hand on the wheel and the other pressing your cell phone to your ear, or with no hands on the wheel while sending a text message or an email...but please do so safely. And to the teenagers with provisional licenses: You will have to hang up and drive altogether (hands free or not)... at least until you are no longer a teenager, that is. July 1 is the end of an era. Let's call it the "pre-hands-free era", where it is unclear (at best) whether there was a resultant increase in the numbers of traffic accidents. Interestingly, in recognition of the Fourth Amendment's prohibition of unreasonable warrantless searches and seizures, these new laws disallow law enforcement's use of these laws as a pretext to pull someone over. In other words, they have to "know", and not simply "suspect", that you are violating one of these laws before they pull you over on that basis alone. I must say, I do like this built-in privacy protection. Different.
School Zones. AB 321 will now allow local jurisdictions to adopt an ordinance establishing a speed limit of 15 miles per hour in a school zone. [So, you must slow down even when driving Miss Daisy through a school zone].
Street Racing. SB 67 reauthorizes a law that lapsed in 2006. It allows police to impound a vehicle for 30 days when a person is arrested for street racing, exhibition of speed, or reckless driving. [See, laws can lapse...in theory anyway.]
Smoking in Vehicles. SB 7 prohibits anyone from smoking a cigarette, a cigar, or a pipe in a vehicle, whether in motion or not, in which there is a minor. The smoker can be fined up to $100. Police can only cite for this violation in connection with a stop for a suspected violation of another driving offense. [For enacting this brilliant law, the Legislature truly deserves the Nanny Award... do we really need this law? Is it really going to prevent even one instance of lung cancer? Who knows?]
Traffic School. AB 645 prohibits a court from allowing a driver who commits a two-point violation from attending traffic school. Two-point violations include drunk driving, hit-and-run, speed contests, evading an officer, and vehicular manslaughter. [Uh, this wasn't happening anyway, by the way].
Saturday, November 3, 2007
A quiet Halloween
Compared with 2004, and other busy years, this Halloween celebration in Isla Vista was a quiet one. There were only 228 arrests (compared with as many as 700 in previous years). There were only 200, or so, citations for MIP and other alcohol related misconduct. The best news of all is that no one got seriously hurt. Apart from the fact that some community members are just disturbed by people letting their hair down and having a good time, the purpose of spending over $1,000,000 in law enforcement overtime compensation and other related expenses was to save lives; and it worked. Of course, the dependent premise is that someone would have died had they not all been there. Of that, we cannot be sure. But, better safe than sorry; no question. What is worth thinking about is that as many as 150 community members, who had no criminal records before the celebrations started, will, within the next few months incur convictions for mostly misdemeanors; the most common among them will be public intoxication (647(f) PC)). It is unfortunate that the lack of a sobering center Isla Vista, as I have pointed out in a previous post, in and of itself, is the number one factor why many will now have to do battle in court, or simply accept the fate of becoming convicted of a crime by pleading guilty. Maybe sometime soon the community leaders will make effectuating the State's policy preference to sober-up the intoxicated, see Penal Code section 647(g), a high priority, rather than criminalizing large swaths of the local student population every year at Halloween (and throughout the year). After all, we don't need any more "criminals" in our community, do we?
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