TheAgitator.com
Back to You, Justice Scalia
Monday, May 12th, 2008If you’ll remember, Justice Scalia argued in Hudson v. Michigan that the Exclusionary Rule isn’t necessary in the case of illegal no-knock raids because there are less drastic, more effective ways of deterring police officers from conducting illegal searches. The ruling was of course confined to the issue of wrongful no-knock searches, but it’s no secret that Scalia and other Federalist Society types want to do away with the Exclusionary Rule altogether. These other methods of deterring police from conducting illegal searches, Scalia argued, include a vague “new professionalism” in police departments across the country (which, the scholar Scalia improperly quoted has explained, is due to the fact that police have been held accountable when they do conduct illegal searches by the exclusion of evidence), civil rights suits from people who have been wrongly searched, and internal disciplinary procedures against offending officers.
Scalia’s first reason is debatable at best. And as we’ve seen, his other two remedies rarely happen, in part thanks to rulings from judges like Scalia, who have made it increasingly difficult to sue an agent of the government.
Here’s the latest piece of evidence against Scalia’s argument that police are usually disciplined by their own departments for conducting illegal searches:
But a closer look at those prosecutions reveals something that has not been trumpeted: more than 20 cases in which judges found police officers’ testimony to be unreliable, inconsistent, twisting the truth, or just plain false. The judges’ language was often withering: “patently incredible,” “riddled with exaggerations,” “unworthy of belief.”
The outrage usually stopped there. With few exceptions, judges did not ask prosecutors to determine whether the officers had broken the law, and prosecutors did not notify police authorities about the judges’ findings. The Police Department said it did not monitor the rulings and was aware of only one of them; after it learned about the cases recently from a reporter, a spokesman said the department would decide whether further review was needed.
Though the number of cases is small, the lack of consequences for officers may seem surprising, given that a city commission on police corruption in the 1990s pinpointed tainted testimony as a problem so pervasive that the police even had a word for it: “testilying.”
And these cases may fuel another longtime concern that flared up again in recent days: suspicions that the police routinely subject people to unjustified searches, frisks or stops.
[...]
Federal judges rarely suppress evidence, Judge Martin said, and the unusual number of suppressions in New York City gun cases raises questions about whether such tactics may be common. “We don’t have the statistics for all the people who are hassled, no gun is found, and they never get into the system,” he said.
The point here is not that a small number of police officers were caught conducting illegal searches. The point is that they weren’t in any way held accountable for conducting them, even after called out in court by a judge. Those internal disciplinary procedures aren’t merely not working very well, they’re practically nonexistent.
‘Warrior Mindset’ + ‘New Professionalism’ = The Real Domestic Terrorism
There’s a good discussion of the exclusionary rule in Bruce Benson’s “The Enterprise of Law”. I would also like to get rid of it, if we could treat illegal searches as another crime for which you would be held responsible, even if you have a badge. The Exclusionary Rule offers no protections to someone that never goes to trial, or if they do without evidence from the illegal search.
If the police are not following those rulings, and the prosecutors are not following them, either, it is virtually certain that there were Brady/Giglio violations in subsequent cases involving the same officers. Defendants are entitled to disclosure of impeachment evidence, including prior judicial findings that an officer or investigative agent has lied in testimony.
Notwithstanding the occasional exception who rebells against particularly unbelievable police testimony, one must remember that a judge is generally not an impartial arbiter. He is a government-paid, 9-to-5 employee who was probably a former prosecutor and got to be a judge because of his reputation for being tough on criminals.
In other words, the judge is “one of them”.
After that 60 Minutes interview, I have no illusions about what a fascist Scalia is. And if he really is in Opus Dei, it doesn’t surprise me a bit. Personally, I’d rather handle poisonous snakes. At least *they* give you fair warning. Usually.
Given all you’ve covered here, and all the similar incidents that surely haven’t been covered here, what would it take for Scalia to recognize that no such professionalism exists among modern police? Surely there’s some threshold that would convince even Scalia that he was wrong about this. How much violence is necessary to prove it?
Radley:
LT reader; FT commenting. I’m disappointed whenever a little-L libertarian presumes that the “Federalist Society” as a whole wants some particular outcome, especially when that outcome is more statist than libertarian. This is all the more so when the writer is familiar with the robust nature of the conservative DC scene. As you surely know, FS members generally fall on a conservative spectrum, with one end of that spectrum firmly in the libertarian camp. I think your blog and writings, such as “Overkill” get a sympathetic reading from many, if not most FS members. Additionally, I think that many, if not most, FS members are critical of Supreme Court decisions such as Kelo, Hiibel and Raich, regardless of Justice Scalia’s positions. Yes, there are some FS’ers who broadly support the so-called “law enforcement” positions on the drug war and 4th Amendment matters, but by no means do those positions deserve to be labelled as belonging to “FS types”, at least without the disclaimer “some.” Even so, I’d still find the characterization unfair.
#7: Your point is well-taken on an issue like medical marijuana, and certainly on a case like Kelo.
But don’t you think it’s a pretty fair statement to say that a huge majority of the Federalist Society’s members would favor repealing the Exclusionary Rule?
I’m happy to be wrong. But I’d be quite surprised if I am.
Radley,
I’m in favor of overturning the exclusionary rule, for 2 principled reasons:
1. I don’t think it works at all. It certainly doesn’t help the innocent against police violations, and it doesn’t help to reform police procedures because by the time the rule is applied, it’s years after the police have broken the law and in the meantime they’ve probably been breaking it again and again for years. Also, people don’t get to rely on it unless they go to trial, and since most people plead guilty for lesser offenses, it’s never used.
2. It’s extra-legal, created by judges and not by democratically elected representatives. I’d have no problem with a statute or a constitutional amendment that permits exclusions like this, but I have a strong, strong distaste for judicial legislation because it’s the same thing that brought about Roe v. Wade and 40 million dead babies. I also feel the same way about Miranda, because it’s completely ludicrous that for 150+ years, police were arresting unconstitutionally people without reading them a little speech. Again, I’d be in favor of a Miranda-style thing if it were imposed by statute or by a constitutional amendment, but I cannot stand judges legislating. If we go down that road, it leads to abuses like Scalia haughtily saying that police professionalism protects us. His opinion is no different from anyone elses’ who creates law like that.
Radley, I’m also a Federalist Society member. I’ve never heard anyone argue for the end of the Exclusionary Rule. I won’t deny that some of us might hold that opinion, but I really don’t agree that most do.
I’m not really a big Scalia fan. I’m occasionally with him on the ultimate judgement, but rarely on his reasoning. I tend to be more of a Clarence Thomas kind of guy.
I’m sick. I cannot believe what our country really is. Not what it has become, but what it has been for some time. I’m 41 work in corp. security, and deal with cops on a regular basis. I guess they think I’m on their side as I work bank fraud and theft cases for a living.
I’m all fo catching thieves and those who adversely affect other people but I get angry reading this and other sites that highlight the abuses our gov. perpetrates on us at an alarming rate.
#9: The reasoning for the exclusionary rule (from Weeks v. US, if I remember correctly) is that if you don’t exclude the evidence obtained from an illegal search, then you’ve essentially forgiven an abuse of a VERY clearly-written constitutional right. Without this rule, we can determine that a search was unconstitutional, but then the defendant just has to accept that fact and go to jail anyway.
By excluding the evidence it is as close as we can get to having a trial where the illegal search had never occurred.
It is a necessary legal fiction.
The other option is to make criminals out of the police who conducted the illegal search, but that does nothing to remedy the violation of the defendant’s rights.
#4: Supreme Court Justices are not usually former prosecutors. Usually they are legal academics. They make the important constitutional precedent and design the tests that lower judges must apply.
If a former-prosecutor turned criminal court judge ignores that precedent/test or misapplies it, they will certainly be overturned on appeal.
Radley:
Thanks for responding to my comment. Let me also say that 1) your blogs are terrific, 2) I’m glad that “Overkill”, Cory Maye and the MS ME debacle, tragic though their origins, are bringing you well-deserved attention.
As to your question, I’ll ‘fess up to not knowing how a poll of FS members would turn out when it came to repealing the exclusionary rule. I expect that there would be would be three camps and, on the basis of nothing more than anecdote and friendships, I’d say they’d be roughly equal in size: 1) One made up of “law and order” types that don’t like the policy implications of the exclusionary rule (i.e., the obviously guilty go scot-free). 2) one made up of those who like the fact that, despite the guilty going free, the exclusionary rule provides a theoretically strong incentive for police to behave properly). 3) And one made up of people who are both uncomfortable with much of what poor policing puts the innocent through while also uncomfortable with judges inventing out of whole cloth a suppression remedy that does have the effect of permitting some who are demonstrably guilty, sometimes of truly heinous acts, to go free.
I suspect that, if the majority of FSers want the exclusionary rule repealed, it’s because camps 1 and 3 together make up a majority, but that doesn’t mean that they are on the same side when it comes to the reasoning behind their desire to get rid of the exclusionary rule. I suspect that my groups 2 and 3 together would be happy to do away with the drug war, cause of so many of the troublesome searches.
Brian,
I know why the rule is used. But it doesn’t seem to go far enough and doesn’t really help the innocent. Also, by the time it is used, months or years have gone by, and illegal police practices have continued to be used so that by the time the rule suppresses evidence, it doesn’t provide enough of a corrective remedy to the police officers. Furthermore, since almost 90% of cases are plea bargined to lesser offenses, many trials are never held and people plea to crimes based on illegally collected evidence. That, again, prevents any hope that the exclusionary rule would serve as a reforming agent for police.
I think that the police should be legally liable for money damages or other penalties for violations of constitutional/statutory rights. The exclusionary rule (if statutorily passed by our representatives) can be ONE tool to protect a person who goes to trial based on illegal evidence, but it cannot be the ONLY tool. There has to be a remedy to protect people who plea, and for innocent people as well.
Brian, I wasn’t referring to Supreme Court judges. I was clearly commenting on the large quote discussing trial judges’ reaction to unbelievable police testimony. I don’t know what “precedent/test” you’re referring to, but I don’t see the Supreme Court as offering much protection from police who lie on the stand.
But, just so there’s no mistake, I don’t think much of the Supremes, either. The only thing they’ve proven themselves to be masters at is carving out exceptions to the Bill of Rights.
The exclusionary rule has been the tail that wags the dog of the Fourth Amendment since it was applied to the states in Mapp v. Ohio (1961). The Court articulated the sanction for a Fourth Amendment violation, but the content of the guarantee against unreasonable searches and seizures was left to future case by case development. It did not take long for opponents to realize that if there is no Fourth Amendment violation, there is no need to exclude evidence. Since 1963 the Supreme Court has been chipping away at the substance of the basic guarantee against unreasonable searches and seizures. For example, the Court in Katz (1965) came up with the assertion that the Fourth Amendment applies only to “reasonable expectations of privacy.” It takes only five members of the Court (whose real world experiences are reflected in Justice Scalia’s claims of police professionalism) to tell us what we reasonably cannot expect in terms of being let alone by cops — this includes bank records, telephone logs, dog sniffs, trash searches, private coversations where one party consents to being monitored, hovering helicopters over our houses, being stopped and frisked on the street with less than probable cause, open season on automobile drivers who “commit” minor traffic violations — and that is but a partial listing. Coupled with courts’ and prosecutors’ indifference to police “testilying”, and the several other exceptions to applications of the Fourth Amendment exclusionary rule even when violations do occur, there is little in the way of substance left. As a matter of fact, the votes to overturn Mapp have been there for several years and we can only speculate why the Justices have been reluctant to take the final step. Fear of floodgates opening when the police are free of the fear of exclusion of evidence? Perhaps, but I doubt it. Hudson v. Michigan sends up a warning signal that Mapp’s days are numbered. Now even some acknowledged violations of the Fourth Amendment will not require the sanction of exclusion. Based on history there will be more of these “exceptions” to come. P.S. I have been practicing and teaching in this area for over 40 years.
IANAL, so possibly a dumb question but…
Isn’t this a perversion of what the Founders initially believed in? Keeping the power of the State in check? Seems like illegal searches would be right there at the top of the list…at least in the top 5 if not top 3.
I just want to clarify the issue that the exclusionary rule only helps people who go to trial: most criminal courts conduct “suppression hearings” which are apart from a trial and can usually be scheduled rather quickly. At those hearings they decide whether to supress the evidence, so it can be excluded before a trial date is even set.
Most Defense attorneys will factor the likelihood of a suppression into their plea bargaining and can and will wait until AFTER a suppression hearing to reach a potential deal. I mean, isn’t it clear that the exclusionary rule affects plea bargains even where the evidence is not officially suppressed because a plea bargain is largely based on what the lawyers expect will happen at trial? Just like any other unknown occurrence that can be predicted affects any other type of negotiation.
And as has been addressed on this site, the exclsuionary rule protects everyone, particularly the innocent, because it teaches the cops that they don’t want to make illegal searches because the search will be fruitless. Innocent people can be wrongfully invaded just as the guilty can. Any other solution may deter illegal searches to an extent, but I doubt any as effectively. Criminal and civil penalties tell cops to go ahead and conduct that search that’s *probably* illegal, then take theirr chances with a jury at least a year (guaranteed minimum) down the road where you get to play the heroic cop who caught a bad man.
The single most important factor is what will get police to make dilligent efforts to not illegally search individuals, all of us. And obviously the 4th Amendment not being a joke of a protection is more important than a single criminal go free because the police screwed up.
“the exclsuionary rule protects everyone, particularly the innocent, because it teaches the cops that they don’t want to make illegal searches because the search will be fruitless. Innocent people can be wrongfully invaded just as the guilty can. Any other solution may deter illegal searches to an extent, but I doubt any as effectively. Criminal and civil penalties tell cops to go ahead and conduct that search that’s *probably* illegal, then take theirr chances with a jury at least a year (guaranteed minimum) down the road where you get to play the heroic cop who caught a bad man.”
Nick, that’s a good point. But maybe if police were sued and penalized as often as evidence is suppressed, people wouldn’t view cops as heros all the time.
A couple of hypotheticals, if any lawyer types could help me out:
-1- Suppose Bob the Burglar breaks into a house with the intention of stealing things, and discovers a bunch of dismembered corpses. He decides that the crime implied thereby is sufficiently heinous that he’s willing to turn himself for the burglary and testify as to what he saw. Should the police be able to get a search warrant, on the basis of Bob’s testimony, even though Bob’s presence in the house and ability to see the evidence was in no way whatsoever legally justifiable?
-2- Suppose Bob the Burglar broke into the house, with similar intention. He gets some blood on his sleeve, and leaves without calling the police. He is caught for some other reason, however, and the police are able to match the DNA on the shirt with one of the victims. Standing accused of the murders, Bob tells the police what he saw. What would be the search-warrant ruling then?
In the former case, the principled argument would be that a warrant should not be issued, since any evidence Bob might give would be ‘fruit of the poison tree’. Further, nothing would prevent cops from letting crooks know that they wouldn’t prosecute burglaries of certain addresses if the burglars let them know what they found there. Thus, allowing the issuance of a warrant based upon criminals’ reports would risk opening a significant loophole in the Fourth Amendment (yes, I know courts have opened worse ones, but that doesn’t mean they’re really Constitutional).
The latter case is more interesting, because rather than balancing the rights of the property owner versus the state, it balances the rights of one criminal against another. Joe may be a thief, but that doesn’t mean he shouldn’t have a right to use the best available evidence in his defense. Joe having a victim’s DNA on his sleeve would be bad, but if evidence at the crime scene would tie the killings more strongly to someone else that would tend to exculpate Joe of murder (he’d still be culpable for burglary, of course).
Any thoughts?
supercat, your #1 is essentially what led to the Ryan Fredericks tragedy earlier this year: The police ‘confidential informant’ was a person who broke into Fredericks house, and was apparently caught for something or other by the police, and then said ‘This other guy has a pot growing operation’. They got a warrant, busted in, and the rest is tragedy. So apparently ‘fruit of the poison tree’ is not a real deterrent against using that information.
I agree that as a general rule, police do far too much relying upon information from criminals, though I’d be curious whether the ‘confidential informant’ actually testified to anything, or whether a cop merely testified as to what he’d been told. The fact that the Constitution doesn’t explicitly say that the “oath or affirmation” constituting probable cause has to relate personal knowledge of the affiant shouldn’t be taken to mean it’s not required. Rather, the reason it’s not explicitly stated is that the framers considered it too (bleep)ing obvious to need stating. Doesn’t mean courts don’t ignore the obvious, though.
The second scenario is the one I’m more interested in, though. Certainly one would hope that Bob would be able to avoid having the murder rap pinned on him (whether or not one cares about Bob, pinning the murder rap on him would end the search for the real killer), but allowing defendants to potentially conduct fishing expeditions on people they don’t like would be dangerous. I’m not sure how those interests would best be balanced, though if government personnel could be relied upon to exercise the sort of ‘clean room’ procedures required in some intellectual-property settings, that might be a good approach. Unfortunately, I doubt such procedures would work in practice.
supercat,
Those situations would not implicate the 4th Amendment until the warrant application stage becuase the 4th Amendment only involves intrusion upon your person or property by *government* agents.
It’s very important to remember that nearly ever single right we have under the Bill of Rights is only with respect to the government. Of course the home-owner would have rights in tort law against Bob, but he could not assert his 4th Amendment rights in that case. Don’t worry though, the police can’t just tell private citizens to search someone’s house and get around the exclusionary rule. Those private citizens would then become agents of the government agents (the police) and then 4th Amendment protections would be effected.
So in both cases, the police’s ability to get a search warrant would merely depend on whether they could show probable cause. Surely in #1, probably would need more facts for #2.
I don’t know too much about this, but my general impression of Scalia after watching the Brian Lamb interview is that he looks down on people. The comment that really blew my mind was when he asked why a brilliant, sharp public defender sould be doing something worthwhile with her life, like re-inventing the wheel instead of public defending. Wow, to him a worthless occupation, defending the defenseless. He sure was high and mighty. Did anyone see that interview and know what comment I’m talking about? He said it with a weird glee.
actually I think he said she should be re-inventing the automobile, not the wheel.