A "balancing test" for the exclusionary rule?
There's a time-honored rule in appellate law that a court shouldn't say anything more than necessary to address the issues at hand. That rule takes numerous forms: the court should avoid deciding a constitutional issue if the case can be decided on statutory issues instead; if there is a reversal on one issue, that usually moots the other issues; and so forth. The mischief that can be created by a court not limiting itself to discussing only the issue at hand are on full display in the 6th District's decision last week in State v. Bragg.
The case presented a simple question: when do the police have the right to search the interior of a car for weapons after a traffic stop? The facts were simple, too: police were told by the driver of a passing car that someone in an SUV just ahead of him had pointed a gun at him. The police stopped the SUV and pulled the passengers out of the vehicle; a search of the car discovered a loaded handgun in the glove compartment. It turns out that the defendant had several warrants, although it wasn't clear what the warrants were for. The trial court had suppressed the search on the basis that the discovery of the gun preceded the discovery of the outstanding warrants, and this sequence showed that the search wasn't incident to the arrest.
The 6th District reversed, and the result is understandable; there's plenty of case law which says that if the police have a reasonable suspicion that there's a gun in a vehicle, they have a basis for searching the interior of the car. The court goes into a lengthy discussion of how the defendant being out of the car plays into that calculus, but it's really not necessary. Still, I'm not going to fault the court here for going beyond what was absolutely necessary to decide the case.
But then we stumble across this little tidbit from the opinion:
Further, assuming arguendo that the search was unreasonable (which it was not), suppression of the evidence should not be a foregone conclusion. The suppression rule is a judicially created measure to deter egregious police conduct; it is not "a personal constitutional right of the party aggrieved."
Huh? Is the court seriously suggesting that in all future cases, in addition to determining whether the search is valid under the 4th Amendment, the trial court should determine whether the police conduct is sufficiently "egregious" to require exclusion of the evidence? The court cites a number of US Supreme Court cases indicating that exclusion isn't the automatic result for a 4th Amendment violation, but those cases dealt with the issue of whether the exclusionary rule should be applied to searches with a warrant, and of course culminated in the decision in US v. Leon, where the court held that it shouldn't, so long as the police have a good-faith basis in the warrant's validity.
To be sure, there are societal costs imposed by enforcement of the exclusionary rule, and there's been a long-running debate on whether those costs are worthwhile. But it's one thing to mention that debate, and an entirely different thing to imply, as the 6th District does, that the debate is over, and that the determination to exclude evidence is to be made on a case-by-case basis, even for warrantless searches.
I think there's a decent chance that sometime in the next year or so, some prosecutor in the 6th District is going to seize on those words and try to convince a trial judge that even though the warrantless search violated the 4th Amendment, it wasn't sufficiently "egregious" to justify exclusion of the evidence, and that some trial judge is going to agree with that. And then the 6th District will be put in the position of having to clean up the mess that its foray into an issue totally unnecessary to its ruling created.