Bad Cop, No Donut?

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.

Bill of Rights on the Table

The U.S. Supreme Court in District of Columbia v. Heller just held a D.C. law banning handguns violative of the Second Amendment to the U.S. Constitution. For the first time the Supreme Court struck down a law prohibiting firearms on Second Amendment grounds. The NRA is celebrating and so should the broader set of civil libertarians. This is not to say that there is anything particularly positive about the surge in handgun purchase and possession that this case will bring about. More guns means more shooting. More shooting means more death and maiming. Deaths and maimings are not generally cause for celebration. Justice Scalia, however, reasoned, essentially, that the clear (and "enshrined") language of the Second Amendment necessarily takes certain policy considerations off the table. In other words, arguing that a law banning handguns furthers a positive policy agenda (because it saves lives) is not going to compel the Supreme Court to ignore the plain language set forth in the Bill of Rights.

So, here's what I take from that: Unreasonable warrantless searches and seizures, coerced confessions, deprivations of procedural protections, inflictions of cruel and unusual punishment, restraints on free speech, interferances with the free exercise of religion, establishing an official religion, and myriad other deprivations of civil liberties by the government cannot, by Scalia's logic, be justified on the ground that they may further a positive policy agenda. In light of Heller I would now suggest a re-examination of the landmark U.S. Supreme Court case of Michigan v. Sitz, in particular. Why? Because the Court all but ignored the plain language of the Fourth Amendment to allow law enforcement to conduct systematic warrantless searches and seizures, in the shape of DUI checkpoints, to promote the positive policy agenda of preventing drunk driving. To argue that checkpoints are "reasonable" in a free society is to ignore a simple distinction: The other acknowledged exceptions to the warrant requirement (exigency, Terry, Leon, reasonable suspicion, etc.) do not deliberately and systematically cause the seizure and search of large swaths of law-abiding people in the name of crime prevention. The choice to allow these warrantless searches is done clearly in the name of a positive policy agenda which, as Scalia, would have it, should be "off the table".