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Taking another crack at the exclusionary rule

Back in November, I mentioned the 8th District's decision in State v. Mansaray, in which US Marshalls, in executing an arrest warrant for somebody else, entered Mansaray's house and observed drugs in plain view.  Mansaray's conviction went by the boards when the 8th threw out the search, holding that an arrest warrant doesn't give the police the right to enter a residence of a third party unless they have a reasonable belief that the person named in the warrant lives at the residence and is in fact home.

The State recently filed a Memorandum in Support of Jurisdiction, seeking the Ohio Supreme Court's review of the decision.  The first proposition argues that there's a conflict in the law:  certain Ohio appellate decisions go one way, while there's a US Supreme Court decision that goes the other.  Gosh, the US Supreme Court says one thing about federal constitutional law, Ohio appellate courts say another; that's gonna be a tough one to sort out, huh?

But the second argument in Mansaray might get some traction; in fact, the Supreme Court's already accepted another appeal on that very proposition.  And that proposition goes to the continued vitality of the exclusionary rule.

Back in August, I highlighted "a huge 4th Amendment decision from the 6th District," State v. Gould.  Gould had given his computer hard drive to his mother, who subsequently gave it to the police.  It contained pictures of child porn, but Gould was saved from a life sentence when the 6th reversed the trial court's determination that the hard drive had been abandoned.

The State raised four arguments in its appeal to the Supreme Court.  One was the same one it had raised back in State v. Johnson (oral argument discussed here), that based on a 1936 Ohio Supreme Court decision, Ohio's constitutional equivalent of the 4th Amendment doesn't have an exclusionary rule.  At least that argument made sense in Johnson, where the issue was the legitimacy of a search incident to arrest for a minor misdemeanor.  Although the US Supreme Court had held that the 4th Amendment didn't prohibit an arrest for any criminal offense, the Ohio court subsequently ruled that the state constitution didn't permit an arrest for a minor misdemeanor.  In Gould, the argument makes no sense:  we're talking about the validity of search under the US Constitution, so whether Ohio's counterpart has an exclusionary rule is of no significance.  ("Made sense" doesn't mean "accepted":  the State's contention was openly ridiculed by several of the justices, and the case was subsequently as having been improvidently granted.)  The other two arguments revolved around whether the trial court's determination that the property had been abandoned should have been given more deference by the appellate court.

The Supreme Court rejected those three propositions, but accepted jurisdiction on the first:

The exclusionary rule applies only when a violation of Fourth Amendment rights is the result of deliberate, reckless, or grossly negligent disregard of Fourth Amendment rights or involves circumstances of recurring or systemic negligence. Evidence may not be excluded unless the conduct is "sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system."

The quotation is from SCOTUS' decision in Herring v. United States, the 2009 decision which upheld Herring's search incident to arrest, despite the fact that the basis of the arrest was a warrant which was no longer valid.  As I mentioned when I discussed the opinion, Roberts' opinion for the majority was essentially a rant about the costs of the exclusionary rule:

To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.  As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.

Some have argued that this establishes a new standard for exclusion:  evidence isn't to be suppressed unless the police have engaged in "deliberate, reckless, or grossly negligent conduct."  (In fact, I had a prosecutor make that very argument to me yesterday morning.)  I think that's a hard sell, and especially in Gould's case, for a couple of reasons.

First, it's all dicta.  It's one thing to say that a record-keeping error by the police -- which is what happened in Herring -- shouldn't require exclusion, but it's quite another to suggest that when the cop on the beat makes a stop and frisk, we should not only determine whether decision was based upon reasonable suspicion, but whether his determination on that score was "reckless" or "grossly negligent."  In fact, when the Court overruled New York v. Belton three months later in Arizona v. Gant, there was nary a word about using those heightened standards in determining whether the search was valid.  Which brings us to point two:  if there is a new standard, it's up to the Supremes in D.C., not Columbus, to announce it.

So why did the court even take the case?  It may simply have figured it's time to use the 4th Amendment as a punching bag again.  It did the same thing back in 2007 in State v. Oliver (discussed here); there, it had seized on Scalia's screed about the exclusionary rule in Hudson v. Michigan, in which the court held that the rule wouldn't apply to violations of the no-knock rule.  In Oliver, the court announced:

As the court noted in Hudson, the exclusionary rule and the concomitant suppression of evidence generate “‘substantial social costs’” in permitting the guilty to go free and the dangerous to remain at large.  Because of that “‘costly toll,’” the courts must apply the exclusionary rule cautiously and only in cases where its power to deter police misconduct outweighs its costs to the public.

So what happened after that?  Nothing; the court's handled numerous cases since then, with no hint of a new balancing test to be employed in each, comparing the costs of excluding evidence against the benefits to be obtained from doing so.

And hopefully, that's what will happen this time.  Fourth Amendment law is complicated enough without injecting a new factor, especially one so vague as this, into the calculus.  Besides, the argument's overblown.  Yes, the exclusionary rule does impose costs, but the problem is that only the costs are visible.  When the cops pull over somebody with no reason and find drugs, when we toss out the drugs we know about the societal cost -- someone who's guilty has gotten off on a "technicality."  When the police don't pull over somebody for no reason because they know they can't do that, we never learn about that.  But that's the benefit, and a rather substantial one, that's conferred by our observation of the 4th Amendment.

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