Why the Exclusionary Rule Matters

Thursday, June 30th, 2011

In Tennessee, a big drug bust is in jeopardy after a federal judge found that police had no reason for the traffic stop that led to the subsequent search and arrest:

It should have been a victory for Tennessee narcotics policing. Drug task force agents see a car zoom past on Interstate 65 South in Robertson County — prime conditions for the kind of pretextual traffic stop that could lead to a drug search. Indeed, a search of the late-model Ford sedan reveals that the two Hispanic men from Dayton, Ohio, are drug mules who’ve been paid a pittance to risk transporting a half-kilo of heroin down a known drug corridor . . .

Instead, Lt. Shane Daugherty, a team supervisor with the 17th Judicial Drug Task Force and perhaps one of the most high-profile narcos in the state, now finds his own credibility in question. Meanwhile, the Ruizes are all but ready to walk out of jail as free men. With one ruling, federal district Judge Aleta Trauger rendered the evidence Daugherty discovered off limits and the prosecution’s case against the cousins virtually unwinnable.

The message Trauger’s memo sends to the agent and the Tennessee law enforcement community in general is clear: Have probable cause nailed down — or suffer the consequences in court. At issue is not whether one or both of the Ruizes were knowingly transporting heroin, but whether they were ever speeding in the first place.

The article goes on to detail how the dash cam and other evidence strongly suggests the Ruizes were not speeding, and that Daugherty pulled them over on little more than a hunch. He has also since changed his story, a couple times.

Critics of the Exclusionary Rule argue that it only protects the guilty. And sure enough, here you have the likely outcome that a couple drug runners—and the drug distributor they gave up—will go free.

But what about all the innocent, likely brown or black people Daugherty also pulled over on a hunch? I suppose it’s possible that every illegal stop Daugherty made solely on instinct turned up drug runners, but that seems unlikely. The fact that his dash cam was set to begin recording only after he turned on his lights—conveniently leaving out whatever traffic violation led to his decision to pull the motorist over in the first place—suggests that this wasn’t his first illegal stop. Most of the innocent people harassed by such stops aren’t likely to file a complaint, much less a lawsuit. Even if they have the inclination to sue, thanks to qualified immunity they aren’t likely to find an attorney to take their case. That’s because even in the unlikely event they can get past qualified immunity, it’s unlikely that a judgment for an illegal roadside search would win enough in damages to make a lawsuit worthwhile. It would take a group like the ACLU, amassing dozens of plaintiffs, to have any real effect. (The ACLU has filed and won such suits. But they certainly don’t have the resources to address this stuff everywhere it happens.)

So without the Exclusionary Rule (and frankly, even with it), there’s little to keep Tennessee cops from illegally pulling over and harassing innocent motorists. In fact, if you’ll remember back to that Nashville TV news investigation on asset forfeiture last month, there’s a strong financial incentive in favor of profiling motorists. I suppose we could fall back on internal discipline—that new police professionalism Justice Scalia is fond of bringing up. But how many police agencies are going to seriously discipline a cop for making pretext stops if every 10th or 20th such stop results in tens of thousands of dollars for his department?

The Exclusionary Rule certainly isn’t ideal. But it does at least serve as some check on Fourth Amendment violations. It’s really the only check. Daugherty’s career-making bust may now be a career-ending one, especially if he’s designated a “Brady cop.”

Yes, an unsavory character may duck charges in the process, but that’s what gets the public’s attention, which is what forces change. The bigger the fish that gets away, the more attention the Fourth Amendment violation that led to the arrest gets in the press, the more embarrassment subsequently cast on the law enforcement agency in question, the greater the likelihood that said agency will better train its cops in the future (or, if you’re cynical, change its unofficial policy). A cop the Nashville Scene says is one of the most high-profile narcos in the state is now fighting for his career. You can bet that the state’s drug cops now know that there’s a federal district court judge who’s growing suspicious of the way they operate. That means less harassment of innocent motorists.

(In less encouraging news, the Louisiana Supreme Court just went the other way, refusing to throw out evidence gathered after a search based on an police officer’s hunch and the old “furtive gesture” routine.)

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48 Responses to “Why the Exclusionary Rule Matters”

  1. #1 |  Danny | 

    Because the exclusionary rule is an all-or-nothing gamble, there are strong systemic incentives to under-enforce it.

    An auspicious reform of the rule, which I saw proposed elsewhere, would involve applying it to sentencing rather than guilt, by, say, cutting in half a sentence of a defendant who suffered a 4th Amendment violation.

  2. #2 |  Bob | 

    People just aren’t getting it. It’s IMPOSSIBLE to interdict all drugs on the highway. It doesn’t matter how much you manage to grab, that much more will just be muled through. Enough to supply demand will get through. Period.

    Stop wasting money on this pointless shit. Just stop this fucking war on drugs!

    For every car with a few keys of H that are stopped, how many innocent motorists are harassed of subject to asinine forfeiture laws?

    People, just stop this fucking war on drugs!

    All the violence in Mexico, all the violence over “drug turfs” in inner cities will just go the fuck away if you just do one thing:

    Just stop this fucking war on drugs!

    Drug war or no drug war, the same amount of drugs will still be here. Accept that simple fact, and we can all finally go the fuck to sleep in peace.

  3. #3 |  Radley Balko | 

    An auspicious reform of the rule, which I saw proposed elsewhere, would involve applying it to sentencing rather than guilt, by, say, cutting in half a sentence of a defendant who suffered a 4th Amendment violation.

    But that doesn’t really splash back on the cops who committed the violation the way tossing out the evidence does.

  4. #4 |  Gaunilo | 

    About 15 years ago I was in Atlanta on business, and had a long conversation with a local cop. At the end of the conversation, he asked me if I was driving a car with Texas plates on the way back to Texas. I told him that I was in a Suburban and it had Texas plates, and told him the Interstate I was driving on.

    He told me that at a certain mile marker, I would probably be stopped by a named Highway Patrol officer, and to tell him that he (my new acquaintance) said hello. At that point, he would probably tell me to be careful and to go on my way. I asked him what the probable cause for the stop would be, and he said speeding if you raise the issue.

    Sure enough, at the designated marker, there was a Highway Patrol officer searching a car. Since he was busy, I got by without the stop.

  5. #5 |  Nick T. | 

    Good points, all, but also sort of obvious. These are basic principles of having any rules at all: when people break the rules, they are denied the fruits of their cheating. Arguing against the exclusionary rule is like arguing that steroid using track-stars are still really fast.

    What is the alternative? Officers are hardly held to account when they commit horrible crimes, let alone violate people’s rights. If you want to argue against the exclusionary rule, then you better be in favor of a seriously bad-ass officer accountability system, or you should STFU.

  6. #6 |  Buddy Hinton | 

    All this means is that next time police will get the driver at 1 over on the LIDAR, or else just say that they crossed the fog line, or else thought he saw a seatbelt violation.

    The Exclusionary Rule is no long term solution, but civil suits are, and civil suits will be much easier to win after the Exclusionary Rule is gone, which hopefully it soon will be.

    It is true that ppl do not sue for mere stops, but they do sue for fruitless searches, and this will happen in greater numbers as ppl get ZionEyez, track their speed on their phones, and (most especially) after the courts get rid of the Exclusionary Rule once and for all.

    In a nutshell, the reason that civil suits are as circumscribed as they are is that courts always say: “the primary mechanism for enforcing 4A is the Exclusionary Rule.” The secret weapon of the prosecutors, Professor Kerr, luvs to say this too. So do many defense attys. Once that rug is pulled from under their collective feet, the status quo will upended and there will be a paradigm shift, a good one.

  7. #7 |  marco73 | 

    I love the part where the subordinate officer, who was sitting in the passenger seat, is perfectly willing to throw “one of the most high profile narcos in the state” under the bus to save his own career.

    Didn’t see the radar gun, wasn’t watching when they “pace” the car to determine speed, won’t agree to back up any part of the official report.

    What the heck was he doing in the passenger seat if we wasn’t going to be involved in the pursuit and arrest? A 16 year old police cadet would be more observant than this guy. Probably just riding along to run up his overtime.

  8. #8 |  BSK | 

    The thing is that the cops/courts do have remedies of getting around exclusion. If they can demonstrate inevitable discovery, they can get the evidence put back in. In a case like this, that is likely impossible. But, in other cases, there is the possibility that, if the cops do good work, the case isn’t completely lost. They just have to get over a bigger hump. One of their own making.

  9. #9 |  BSK | 

    I think a bigger question is how does a speeding violation justify an entire search of a car for drugs?

  10. #10 |  Aresen | 

    Somebody posted a great quote from a former SCOTUS justice the other day to the effect that the purpose of making it difficult to arrest people was to constrain the police and government; for individual liberty it was important that it NOT be easy for governments to arrest people.

  11. #11 |  Radley Balko | 

    Once that rug is pulled from under their collective feet, the status quo will upended and there will be a paradigm shift, a good one.

    Do you really think Congress has the backbone to rollback qualified immunity for cops?

    I doubt you could get 10 members of the current Congress to support such a bill, whether or not it also included revoking the Exclusionary Rule.

  12. #12 |  Aresen | 

    Forgot to add: I’d like a pointer to that quote, as I didn’t note it at the time.

  13. #13 |  BSK | 

    “I doubt you could get 10 members of the current Congress to support such a bill, whether or not it also included revoking the Exclusionary Rule.”

    I doubt you could get 10 members of the current Congress to understand what qualified immunity is.

  14. #14 |  Nick T. | 

    Buddy,

    The problem with what you’re talking about is that such a shift would have to come in the form of affirmatively passed laws that allowed folks to sue and recover damages worth more than their actual losses. AND you’d have to do away with qualified immunity. It’s also reasonable to suspect that juries with sympathize with cops who have such “hard jobs” and so much “experience” in saying that they had good reason to dowhat they did even if they were wrong in the end. The civil system, in general, is just not set up to punish folks who did reasonable things that lead to bad results.

    But the issue of damages is very significant. You want people suing and recovering an amount of money which makes the case worth bring at all simply for wrongful automobile stops? Good effing luck.

  15. #15 |  John Jenkins | 

    @Radley, you said that it’s likely the distributor would go free, but I don’t think that’s right. The ADA in quoted in the article says the case against the distributor is unaffected, and I believe that is correct under current Fourth Amendment doctrine (he can’t assert someone else’s Fourth Amendment rights).

    That leaves two other people with possible claims. The driver and the passenger. It would be unusual for the passenger to be able to assert the driver/owner’s Fourth Amendment rights in the vehicle, but not impossible if they are completely intertwined (as they appear to be here).

    My guess is the result on appeal is the evidence against the driver stays excluded, but the evidence against the passenger is reinstated (and if the distributor tries to assert this defense, it will fail).

  16. #16 |  Timothy | 

    I actually think you’re making an incorrect estimate about the likely result of this kind of publicity. The take-away for most of the public won’t be “We need to train cops better so they don’t violate the 4th amendment and we can convict people.” Instead we’ll get, “we need to change the rules so that we can get the bad guys, for the children!”

    While I am glad to see people go free when their rights are violated, the good/evil narrative is so prevalent that I am not optimistic for good changes to the legal system as a result. If anything, people will lobby harder so not so many criminals “get off on technicalities.”

  17. #17 |  BSK | 

    John Jenkins-

    But is the passenger even guilty of what the driver has in his car? Couldn’t he just claim he didn’t know?

  18. #18 |  MacGregory | 

    I think #16 Timothy nailed it. That is much more likely to be the case.

  19. #19 |  John Jenkins | 

    @#17: I can’t tell you the law in Tennessee on that. In Oklahoma, they would both be constructively in possession since the drugs are divisible. Actual possession trumps constructive possession, Kinchion v. State, 2003 OK CR 28, 81 P.3d 681, but here it sounds like there were enough drugs there is not actual possession of all of them by either person.

  20. #20 |  Just Plain Brian | 

    Forgot to add: I’d like a pointer to that quote, as I didn’t note it at the time.

    Are you talking about this comment from Saturday?

  21. #21 |  Aresen | 

    @ Just Plain Brian

    Thanks!

  22. #22 |  Wesley | 

    Radley, I agree with you entirely. It frustrates me when courts find ever-widening exceptions to the exclusionary rule based on the alleged, exclusive purpose of police deterrent. Well yes, that is one beneficial consequence, but it is also akin to saying that a confession obtained by violating the Fifth Amendment should be excluded only insofar as the cops were acting in bad faith and thus exclusion would act as a deterrent. I sometimes want to punch every single judge in the face.

    Worst of all, the case which originally stated the exclusionary rule as a constitutional right (Weeks v. US) up through when it was held binding on the states all emphasized that the rule was part of a [i]constitutional right[/i], not some rule of evidence solely to deter police misconduct.

  23. #23 |  Buddy Hinton | 

    Do you really think Congress has the backbone to rollback qualified immunity for cops?

    Congress didn’t put qualified immunity into the statute, so Congress is not needed to take it out.

    More to the point, the standard of when qualified immunity applies is smushy and subjective. It applies when a Constitutional right is clearly established. Once courts can no longer kid themselves about the Exclusionary Rule deterring 4A infringements, courts will simply be more likely to find that rights are “clearly established” based on inferential reasoning from what precedents are already out there. Courts already do this inference-building-to-establish-right under the current law (I know, I do a weekly search in the fed cases database for “police and ‘qualified immunity’ and ‘fourth amendment'” and read all those cases), but they will simply do more of this once civil suits are the only game in town for 4A enforcement.

    In other words, no statute needs be changed and no precedent needs be changed. There simply needs to be a shift in how the current judicially-created “qualified immunity” is applied as a practical matter.

    The other thing that courts can do to really bolster civil suits is to start allowing claims go to trial on grounds additional to 42 USC section 1983. Kidnapping grounds, assault grounds, etc. Courts don’t even have a good reason for summary judgment’ing these grounds out of the cases as it is, they just do it because they can. I believe that qualified immunity does not apply to these (generally state-law-based) claims at all.

    FINALLY:

    If the legislature were to get involved, there is a better answer. That is: small, immediate, mandatory cash payments to the victim of a warrantless and fruitless search. Kind of like what you get when you get bumped on an airplane. Maybe $100 for a fuitless stop, $200 for a fruitless stop-and-frisk; $400 for a fruitless hand-in-pockets search, $500 for tossing your vehicle and $2000 for a strip search or in-your-house. It should not matter whether the search was Constitutional or not — only whether it rurned up evidence. This is an idea I have posted about before at various places, probably including here. SHG has since picked up on it or at least some version of it (although he doesn’t credit me, not sore — just sayin’). The beauty of this plan is that it cuts way, way back on the involvement of lawyers. The savings in legal costs can be used to compensate victims of fruitless searches, while minimizing the need for Constitutional cases over small sums. In theory this would make justice less perfect, but in practice it would make it a lot closer to perfect.

  24. #24 |  Mannie | 

    #7 | marco73 | June 30th, 2011 at 11:49 am

    I love the part where the subordinate officer, who was sitting in the passenger seat, is perfectly willing to throw “one of the most high profile narcos in the state” under the bus to save his own career.

    Didn’t see the radar gun, wasn’t watching when they “pace” the car to determine speed, won’t agree to back up any part of the official report.

    And when they support each other, we talk about the “Blue Wall of Silence” and cops lying for each other. As you pointed out, the threw his partner under the bus. He’s one step closer to being the legendary “good cop” than is his partner.

  25. #25 |  Buddy Hinton | 

    O yeh, here is a thing I wrote for another board last nite that I wanted to cross post here:

    1st Amendment: Americans get to say / do what we want as long as they don’t do it in public or in front of an unwilling audience.

    2d Amendment: Americans get to have guns, especially handguns.

    3d Amendment: If an American has a pad then soldiers cannot crash there.

    4th Amendment: Policemen can’t get too far up in an American’s shit. However, policemen get to decide how far is “too far.”

    5th Amendment: Americans can’t be tortured into admitting to crimes. Unless the crime is “terrorism.” In which case they can.

    6th Amendment: If a lab technician says a lab test shows that an American was drunk or high, then the accused American can ask the lab technician if she is lying about that. If the lab technician admits that she was totally lying in open Court then the American will not be considered to have been drunk or high. Also, if the government wants to delay transferring a defendant from jail to prison (as happens upon the formal conviction of the crime) then it needs to get the defendant’s permission first. Also, if a defendant is poor then she will be given some amount of resources to defend herself against the charges. There is no set amount for the money value of these free defensive resources, but they have occasionally been known to approach 10% of the budget that the government gives its own lawyers to secure a conviction and punishment!

    7th Amendment: In civil cases, an American is entitled to a jury of white senior citizens.

    8th Amendment: No unusual punishments. Best to stick with the death penalty so that the punishment is “usual.”

    9th and 10th Amendments: The US government totally rules, except in areas where it decides not to rule. In areas where it decides not to rule, it does not rule.

    /ambrosebierce

  26. #26 |  Mattocracy | 

    I know I’m preaching to the choir here, but the drug war is the main motivator or cops to bend/break the rules to get evidence. The less outlawed shit we have, the less likely they are to want to look for shit to arrest you for.

    Better trained cops, changing the rules of immunity, these things aren’t changing the motivation. It’s like creating sin taxes to make people stop smoking. You have to remove the motivation for violating rights by changing what is criminalized and what isn’t.

  27. #27 |  Cyto | 

    Yeah, Mattocracy.

    The “numbers game” of randomly searching people for drugs is such a high reward / low risk game of chance (due to high incidence of flaunting drug laws) that police have great incentive to go fishing. Of course, once trained and inculcated in this methodology, they use it anywhere and everywhere.

    I wonder if we haven’t already gone too far down the road of training our police to circumvent individual rights in the name of the drug war. If we were to repeal all drug laws tomorrow, how long would it take for the behavior of the police to fall into the norms we expect? Would they ever recover at all, or would they just continue to apply the techniques they’ve learned over the last few decades?

  28. #28 |  Frank Hummel | 

    Well hurray for Tennesee. Last Dec my wife and I drove from Dallas to Nashville to catch some shows. Got stopped about 30 mi out allegedly for having the state name partially covered by the lic plate frame. I had to get out of the vehicle so the freaking cop shows me why he stopped me. In the meantime his buddy in the second car was interrogating my wife on the passenger side. The discussions quickly degenerated into questioning whether i had any drugs in the vehicle. I was carrying at the time so i had to give up my weapon so the two heroes be safe.

    Another 10mi down the road got stopped again this time cuz i was “following too close”, on an almost empty freeway BTW. This time the hero just glanced in the back of my truck and wished me a Merry Christmas be safe and not follow too close, what with the holidays and all.

    Next time I’m flying…..

    I guess Raley has a lot of material for his research in that area.

  29. #29 |  Irving Washington | 

    The exclusionary rule works just fine as it is. With the gigantic universe of factors that can constitute reasonable suspicion for a stop, a cop who is so stupid or lazy as to not be able to articulate one (or uses one that’s falsifiable) just doesn’t get to have his arrest lead to a conviction. It’s such a non-burden on law enforcement that I seriously can’t tolerate all the whining about it.

  30. #30 |  Johnny Clamboat | 

    #1:

    An auspicious reform of the rule, which I saw proposed elsewhere, would involve applying it to sentencing rather than guilt, by, say, cutting in half a sentence of a defendant who suffered a 4th Amendment violation.

    Auspicious for whom? I tire of these state fellators.

    My version of reform would mandate actual penalties for constitutional violations for the offenders, not half of a cage sentence for the wronged.

    The negotiations start at tar and feathers.

  31. #31 |  Johnny Clamboat | 

    “drug mules who’ve been paid a pittance to risk transporting a half-kilo of heroin down a known drug corridor”

    I was all set to ask for a complete list of these ubiquitous corridors.

    Upon reflection, a better question: What interstates are not drug corridors?

  32. #32 |  Cyto | 

    With the gigantic universe of factors that can constitute reasonable suspicion for a stop, a cop who is so stupid or lazy as to not be able to articulate one (or uses one that’s falsifiable) just doesn’t get to have his arrest lead to a conviction.

    As has been covered here previously – he could have used “driver failed to make eye contact with me as he drove past” or “driver looked at me suspiciously” (admittedly that was a roadblock situation).

    Furtive movements are always good (see Louisiana link). Improper lane usage is suitably vague.

    On a related note: I recall a 60 minutes piece from 20 years ago on asset forfeiture that featured a similar stretch of highway in Louisiana. They obtained a nice, white Lincoln Continental and drove it down the stretch of highway. They made it 5 miles before passing a deputy. He pulled out after them and pulled alongside. Then tailgated. Then pulled in front and slowed down. Then went back behind and pulled them over.

    His excuse? “Improper lane changes”. The hidden cameras showed that they had not changed lanes during their entire trip down the highway.

    They were prompted to do the story by a lady with a similar white Lincoln. She’d recently bought it used. When they stopped her they found a hole in the trunk. So they confiscated the car and sold it at auction under asset forfeiture. (they put drugs in holes, doncha know.)

  33. #33 |  albatross | 

    Asset forfeiture is much worse, but I think much of the origin of thinking of policemen patrolling roads as potential revenue sources goes back to letting the local government keep traffic fines. That immediately changes the police’s role from keeping the peace and keeping roads safe to raising revenue for the local government.

    And that’s a job that’s automatically corrupting–once the county is expecting a certain amount of traffic fine revenue, the police have an incentive to find ways to fine people. Thus, you get traffic lights set with short yellow light times, sudden hard-to-see drops in speed limit to facilitate speed traps, speed limits set 10-15MPH under the normal prevailing speed of traffic, etc. The police are given an incentive to try to game the rules to get more revenue. The same thing happens with parking enforcement.

    Obviously, no-trial property seizures are another, much worse, step along the same lines. To the extent the police have the job of raising revenue, they have incentives to do things that are absolutely not in keeping with their job of keeping the peace and neutrally enforcing the laws.

  34. #34 |  Jared | 

    Worth reading re: alternative to the Exclusionary Rule
    http://randybarnett.com/resolving.htm

  35. #35 |  JS | 

    Matttocracy “Better trained cops, changing the rules of immunity, these things aren’t changing the motivation. It’s like creating sin taxes to make people stop smoking. You have to remove the motivation for violating rights by changing what is criminalized and what isn’t.”

    Very well said Matto!

  36. #36 |  Z | 

    #1: How does cutting a sentence in half help if the sentence is 200 years or 5 life sentences or the like? And besides, all that “reform” would do is to encourage overcharging so that instead of 5 years they would face 30.

  37. #37 |  C.A. | 

    Show me a traffic stop that violates the 4th Amendment, and I’ll show you a cop that doesn’t know how to lie.

  38. #38 |  J.S. | 

    OT: http://www.courthousenews.com/2011/06/29/37770.htm

    Police taser mentally handicapped teenager…

  39. #39 |  Jay | 

    Critics of the Exclusionary Rule argue that it only protects the guilty. And sure enough, here you have the likely outcome that a couple drug runners—and the drug distributor they gave up—will go free.

    But what about all the innocent, likely brown or black people Daugherty also pulled over on a hunch?

    How does the exclusionary rule directly benefit innocent minorities pulled over by the cops? The short answer is: it doesn’t. All the exclusionary rule does for them is say that the nonexistent evidence of the crimes they didn’t commit gets thrown out. Whoopee.

    People saying that the exclusionary rule only benefits the guilty are exactly correct. And Timothy is right…the only attention it draws is people griping (often with some good points) about guilty people getting off.

    If cops break the rules to get crooks, both parties are guilty. The answer is not to let BOTH guilty parties go free…it’s to punish both guilty parties. I realize this is difficult to implement, but we as citizens need to push for it.

    At the very least, the exclusionary rule is not sufficient, since it does little/nothing to protect innocent citizens, who often have no recourse. Maybe if the law said that any illegal actions a citizen took (like say, assault and battery) that resulted from an officer’s violation of their civil rights were all excluded…that might be something.

  40. #40 |  Wesley | 

    Jay @39

    So if the cops beat a confession out of someone, we shouldn’t exclude that evidence, but just punish the cops? Or they get a confession after refusing a suspect a lawyer? How about if a cop just decides he doesn’t like a guy, and illegally monitors him 24/7 until he catches the guy at something?

    Of course the exclusionary protects the innocent; part of its purpose is that it does deter police misconduct. It also protects the rights of all citizens. A fundamental principle of constitutional governance is that it doesn’t matter if you reach the “right” result if you throw out all rights along the way. And even if the evidence is allowed in, the suspect still may not actually be guilty. All violations of constitutional rights during an investigation must still be judged by the presumption that the suspect is innocent, after all.

    I agree that cops should be punished more. But I would rather have thousands go free than to allow people to be thrown in jail by cops shredding their rights, innocent or not. If a fundamental right is violated along the way, any allegedly incriminating result is and should be excluded. Any other way ignores Constitutional rights and renders them all-but meaningless.

    Cops have actually gotten much better with bright-line rules. For example, criminal procedure professor called Miranda “the great gift to police.” They say some magic words, and any subsequent statements are almost certainly admissible. If anything, the biggest reason these exclusionary rule cases are appealed so much is because all the exceptions make the line between legal and illegal even more blurry.

    Maybe if the law said that any illegal actions a citizen took (like say, assault and battery) that resulted from an officer’s violation of their civil rights were all excluded…that might be something.

    It is not a crime to resist an unlawful order or arrest by the police. Except apparently nowadays if the cops break down your door in the middle of the night.

  41. #41 |  Highway | 

    Jay, as mentioned upthread, the benefit of the exclusionary rule to everyone is to make it known that techniques, pretexts, and specious justifications for searches are not going to be acceptable. The goal is to say that “If you try to gather evidence this way, don’t even bother bringing it to court, cause we’re going to throw it out. Do it the ‘right’ way, that is not going to get your evidence tossed in the bin.” So by sending that message, it at least hopefully puts a damper on unwarranted stops, non-legal searches, and other disallowed practices.

    Now, I think everyone realizes that it’s not completely effective. And there are more dodges around it than a week full of indoor PE class. But it’s what we’ve got for now.

  42. #42 |  Wade | 

    The few remaining shreds of the exclusionary rule are useless when it comes to protecting the innocent. Judges (most of whom are either former prosecutors or former insurance company defense lawyers) hate to apply it, It does nothing to deter the police and it gives ammunition to the law and order advocates who winge about criminals “getting off on technicalities”. What we need (but will never get) are statutory damages for civil rights violations and personal liability for the police who violate the Constitution.

  43. #43 |  ParatrooperJJ | 

    I will point out that having the dash camera only come on when the emergency lights are activated is standard procedure across the US and is not in any way devious.

  44. #44 |  David | 

    It is not a crime to resist an unlawful order or arrest by the police.

    Except in Indiana.

  45. #45 |  Yes, by all means, let’s pay attention to credibility! § Unqualified Offerings | 

    [...] assaults.  It should also be applied to informants (especially in death penalty cases), cops who can’t keep their stories straight, and “expert” witnesses offering testimony that is dubious at [...]

  46. #46 |  Seth | 

    Driving from Denver to Omaha I was pulled over on I80 going 5 under the speed limit in a black Lexus sedan. When inquiring why I was pulled over, the officer said it was suspicious to see someone like me (23 year old white guy with long curly hair?) driving such a nice car under the speed limit. I was then informed that I80 is a drug corridor and that they wanted to search my vehicle which was virtually empty except a trunk full of clothes, golf clubs, and my dog. My initial instinct said no so I asked what would happen if I refuse, to which he said that they would have to bring me in to confirm my license was in good standing as their computer was down. Wanting to call their bluff but in a hurry to meet up with my cousin for dinner, I complied. The officer radioed and 3 more cars pulled up with a total of six officers on the scene to investigate. They asked me to exit the vehicle so I took my dog on the shoulder, sat down, and watched in horror as they took every possible part off of the car, rummaged through my bags and clubs, and scattered everything on the road. Of course they found nothing and after 90 minutes of searching they finally gave up and asked me to help put the car back together. By this time it was dark and I was pissed so I asked them to just leave and that I’d do it myself. It was only then that I got my ID back and was actually free to go.

  47. #47 |  Dominque Strauss-Kahn and the American Justice System | 

    [...] It should also be applied to informants (especially in death penalty cases), cops who can’t keep their stories straight, and “expert“ witnessesoffering testimony that is dubious at [...]

  48. #48 |  Credibility Should Matter. And Not Only In Rape Cases. | Alas, a Blog | 

    [...] It should also be applied to informants (especially in death penalty cases), cops who can’t keep their stories straight, and “expert” witnesses offering testimony that is dubious at [...]

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