So Long, Suppression

Another remnant of the Fourth Amendment is on its way out...

So, the NYTimes yesterday not only predicted but pretty much called for an end to the exclusionary rule, which generally prohibits the government from using at trial evidence that the police obtained by violating the defendant's Fourth Amendment rights. The article says that the United States is the only country that "routinely and automatically" suppresses unconstitutionally obtained evidence and claims that police misconduct may be better punished by, say, "internal discipline and civil suits."

Yeah, I have some problems with this.

Let's talk about the alleged "routine and automatic" suppression of evidence. I practice before a relatively liberal court. I've worked on maybe 50 or 60 motions to suppress evidence in my nearly 12 years of practice. I can count on one hand the ones that resulted in ANY evidence being suppressed and on three fingers the ones that resulted in the prosecution being dismissed. (In one of those cases, the defendant was then given a seven-year sentence in a parole-revocation hearing, at which the exclusionary rule does not apply.) Now maybe I'm a bad lawyer, but I don't know anyone who wins these things routinely and automatically. Cops lie, and judges believe them and will look for absolutely any excuse--and the decade-long erosion of Fourth Amendment rights provides many--to not suppress evidence.

Let's talk about the other proposed remedies for police misconduct. Internal discipline? What a joke. Getting the bad guys by any means is cause for police celebration, not punishment. And the Supreme Court justices who are gunning to get rid of the exclusionary rule and suggest civil suits as an alternative remedy seem to have forgotten that 14 years ago the Court decided that you can't sue the police for an illegal search unless you first can prove that you are innocent of committing the crime for which you were prosecuted based on illegally obtained evidence. In other words, if the police bust down your door in the middle of the night and tear apart your house--in clear, blatant and intentional violation of the Fourth Amendment--and eventually find drugs, you can't sue them for the unconstitutional search unless you first can prove that you're innocent of any drug charge. Good luck with that.

One final point about comparing the criminal justice system in the US with the system in other countries. The article begins with the story of a case from Canada: Guy is stopped, illegally, with 77 pounds of cocaine in the truck, and the Canadian courts declined to suppress the evidence. The guy gets five years in prison. In the U.S., someone caught with that much cocaine, with no prior criminal record, would be looking at 12 1/2 to 15 1/2 years in prison under the federal sentencing guidelines. Kind of a big difference in penalty there. You can't just look at one piece of the system in isolation.

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