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The Supremes take another look at the exclusionary rule

If there's one thing criminal lawyers, normally a contentious lot, can agree on, it's that the 4th Amendment has been pretty much eviscerated over the past thirty years.  Decisions like Whren v. US, which upheld car stops even where the reason for the stop was pretextual, US v. Leon, which created a "good faith" exception to the exclusionary rule for searches conducted with a warrant, and Hudson v. Michigan, which held that the exclusionary rule no longer applied to violations of the "knock and announce" rule, are merely a few of the seemingly innumerable decisions which have reduced search and seizure protections to a shadow of what they were in the halcyon days of the Warren Court.

Oddly enough, a good bit of the blame for this lies with the exclusionary rule, which, in the immortal formulation of Justice Cardozo, allows "the criminal to go free because the constable has blundered."  No other country in the world routinely excludes evidence which was seized illegally, and an argument can be made that the application of the exclusionary rule is what has caused a dilution of the protections of the 4th Amendment.  Relevant evidence is excluded in every trial, but the reason for the exclusion is usually because of concern over the quality of the evidence; someone testifying that her neighbor told her the defendant did it may be relevant, but we rightfully have qualms about the value of that evidence in the ultimate determination of guilt or innocence.  If the police recover twenty kilos of crack from the trunk of the defendant's car, though, we might have concerns over how the police recovered that, but those concerns don't translate into questions about the defendant's guilt.  Thus, the "societal costs" of the exclusionary rule acts as a force in favor of restricting Fourth Amendment protections so as to avoid incurring those costs.

Last week, the US Supreme Court started off its 2007-2008 term with arguments in two 4th Amendment cases, and the spotlight in both was on the exclusionary rule, albeit in different ways.  First up was Herring v. US.  Herring had been arrested based on information from a police clerk that he had an outstanding warrant, which information turned out to be incorrect:  the warrant had been recalled.

The Court had earlier ruled that an error by a court clerk in similar circumstances didn't invalidate an arrest, and Herring's lawyers tried their best in oral argument (the transcript is here) to expand on that.  That argument really didn't go anywhere.  Leon had articulated a rationale for the application of the exclusionary rule:

(1)  "there must be misconduct by the police or by adjuncts to the law enforcement team"; (2) application of the exclusionary rule must result in "appreciable deterrence" of that misconduct; and (3) "the benefits of the rule's application must not outweigh its costs."

Herring argued that correction of police negligence in maintaining records was a worthy purpose of the exclusionary rule, but given Leon's reasoning, that's a hard sell.  I wouldn't be surprised if this turns out to be a unanimous decision upholding the conviction.

The Court also heard argument in Arizona v. Gant, which I discussed back here, and which concerns how far police can go in searching a car after arresting one of its occupants.  Back in 1981, in New York v. Belton, the court had confronted a similar issue and had laid down a "bright-line" rule:  if the defendant was arrested in an automobile, the police could search the interior of the vehicle, and any closed containers in it, as an "incident" of that arrest. 

Of course, this wasn't directly about the exclusionary rule; the question was the scope of the 4th Amendment protections for a person arrested in an automobile.  But the impact of the exclusionary rule to such cases is clear:  again, because of the "societal impact -- exclusion of relevant evidence -- the rule should be clear (and, of course, if it errs on the side of the police, well, that's too bad).

Gant, though, forces the Court to decide just how bright that line should be.  The cops were looking at Gant for drug activity, and when they found an outstanding warrant for him for driving under a suspended license, they staked out his home and waited for him to arrive.  Sure enough, he pulled up, parked the car, got out, and walked over to the officers, who promptly arrested him, then searched his car while he was sitting handcuffed in the back of the police cruiser.

The oral argument, which you can read here, makes the outcome of this one much harder to predict.  The entire justification for the search incident to arrest doctrine is the desire to protect the police from danger and to prevent the destruction of contraband.  That's easy to understand in a case like Belton, where there were four occupants in the car, all standing outside of it when the lone officer made the search.  Most of the justices in Gant, including Scalia, had a much harder time envisioning a defendant who was handcuffed in the back of a police cruiser suddenly breaking free, running to his car, and grabbing a gun to threaten the several police officers who were in the process of searching it.  On the other hand, continued application of the Belton rule obviates the necessity of making a case-by-case evaluation of whether destruction of evidence or a threat to the police actually exists.  This one's hard to handicap.

There's a third search and seizure case on the Court's docket, Arizona v. Johnson, which might prove the most significant of all:  it poses the question of whether a police officer can pat down a suspect if he believes that the person is armed and dangerous, even if there's no reasonable suspicion to believe that he's engaged in criminal activity.  Those two questions are at the heart of Terry v. Ohio, and have always been intertwined, and it will be be interesting to see if the Court decides to split them.  That case is coming up much later in the term, and I'll have more on it then.

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