Act NOW as conservative justices are retiring and dying soon!
January 14, 2009 3:47 PM Subscribe
So the Supreme Court won't let you get indiscriminately search houses because it's an "unreasonable search"? Got smacked down manufacturing probable cause after the fact? Don't waste your time fighting in court with civil libertarians! For a limited time only the Roberts Court will let you use a clerical error to get around that pesky exclusionary rule and rub out even the most stubborn 4th amendment!
This post was deleted for the following reason: this is an interesting topic but need to be presented without so much editorializing, please. -- jessamyn
It's a shame you chose to editorialize this post. Herring is a very interesting legal topic that is fertile grounds for serious and reasoned discussion. Shame you chose to post a bunch of snark, nonsensical comparisons, and then topped it off with a confusing and unfunny thread title.
posted by dios at 3:59 PM on January 14, 2009
posted by dios at 3:59 PM on January 14, 2009
Fine. I've flagged it to get it removed and I'll step aside.
posted by Talez at 4:09 PM on January 14, 2009
posted by Talez at 4:09 PM on January 14, 2009
Well, conservatives always knew John G. Roberts could be counted on for one portion of "search and seizure"...
Now, he's covered both.
posted by Bathtub Bobsled at 4:10 PM on January 14, 2009
Now, he's covered both.
posted by Bathtub Bobsled at 4:10 PM on January 14, 2009
dios, you're welcome to start with the explanations as to why concerns that this might simply encourage clerical accidents amongst law enforcement offices aren't the central consideration.
posted by weston at 4:11 PM on January 14, 2009
posted by weston at 4:11 PM on January 14, 2009
This should do wonders for the accuracy of police records. One sure fire way to get good data is to provide an incentive for errors.
posted by srboisvert at 4:13 PM on January 14, 2009 [2 favorites]
posted by srboisvert at 4:13 PM on January 14, 2009 [2 favorites]
In all fairness, it seems that in the recent clerical error case the officer was acting on the best available evidence. He thought there was a warrant for the arrest of the suspect. During the arrest, he found a gun and drugs. The suspect was a felon and wasn't allowed to have a gun.
Immediately after, they discovered that the warrant information was due to a clerical error.
I'm a big fan of police having procedures for due process reasons and to protect all of us from arbitrary police tactics. But I don't really see this case as chipping away at the exclusionary rule in my non-lawyer reading.
posted by Pants! at 4:13 PM on January 14, 2009 [1 favorite]
Immediately after, they discovered that the warrant information was due to a clerical error.
I'm a big fan of police having procedures for due process reasons and to protect all of us from arbitrary police tactics. But I don't really see this case as chipping away at the exclusionary rule in my non-lawyer reading.
posted by Pants! at 4:13 PM on January 14, 2009 [1 favorite]
Sheesh, as if there weren't enough loopholes available for the police to walk through when they want to tread on your rights. One of the most egregious is that smell constitutes probable cause. But if you take it to court to fight it, how can you prove the cop *didn't* smell something, especially if his search turns up something. In effect, the smell thing allows them to search anyone with impunity, especially in vehicles, merely by *saying* they smelled something, whether that's true or not, whether they find anything or not. It's a virtually unassailable method of doing whatever they want, regardless of laws and rights. We're not as far from Nazis requesting your papers at checkpoints as we might like to think we are.
posted by jamstigator at 4:17 PM on January 14, 2009
posted by jamstigator at 4:17 PM on January 14, 2009
At the outset it doesn't look like they're chipping away at the exclusionary rule but:
a) It's been shown that police are more than capable of manufacturing probable cause and willing to use it
b) Malicious and deliberate errors made specifically to bypass due process will be very hard to prove in a court of law
posted by Talez at 4:19 PM on January 14, 2009
a) It's been shown that police are more than capable of manufacturing probable cause and willing to use it
b) Malicious and deliberate errors made specifically to bypass due process will be very hard to prove in a court of law
posted by Talez at 4:19 PM on January 14, 2009
"A policeman's job is only easy in a police state."
posted by Joe Beese at 4:20 PM on January 14, 2009 [1 favorite]
posted by Joe Beese at 4:20 PM on January 14, 2009 [1 favorite]
I'm on the fence about this. The majority opinion seemed fair in the NY Times article but it was endorsed by the big four conservative Justices so, right there, you have to wonder if they are hypnotizing you with their sincere smiles.
posted by zzazazz at 4:21 PM on January 14, 2009 [2 favorites]
posted by zzazazz at 4:21 PM on January 14, 2009 [2 favorites]
Commentary from the legally trained, although not in the US. These types of rules exist for very good reading, but having read that newspaper article I am pretty convinced that this was the correct decision in the circumstances.
Pants! is right. Mechanisms exist to protect the general populace from arbitrary and unjust exercise of police powers, but other mechanisms exist (in Canda especially the Criminal Code and Charter of Rights) to provide legal tests allowing for judicial discretion in determining when to exclude evidence due to police acting outside of their powers, and when to include it.
In this sort of a case, the fact that the officer acted, in his mind, in full compliance with the law and had looked into the issue to ensure he was complying (unknowingly based on incorrect information), odds are that the actions of the officer will be considered legitimate and the evidence will be allowed to be entered.
Lawyer-training has done a lot to my way of thinking, but nothing more than the fact that these sorts of articles do not explain the real reasons for decisions, because they are boring, but leads to this sort of bullsh!t posted on the interweb.
posted by dazedandconfused at 4:21 PM on January 14, 2009
Pants! is right. Mechanisms exist to protect the general populace from arbitrary and unjust exercise of police powers, but other mechanisms exist (in Canda especially the Criminal Code and Charter of Rights) to provide legal tests allowing for judicial discretion in determining when to exclude evidence due to police acting outside of their powers, and when to include it.
In this sort of a case, the fact that the officer acted, in his mind, in full compliance with the law and had looked into the issue to ensure he was complying (unknowingly based on incorrect information), odds are that the actions of the officer will be considered legitimate and the evidence will be allowed to be entered.
Lawyer-training has done a lot to my way of thinking, but nothing more than the fact that these sorts of articles do not explain the real reasons for decisions, because they are boring, but leads to this sort of bullsh!t posted on the interweb.
posted by dazedandconfused at 4:21 PM on January 14, 2009
That's why I keep a lot of air fresheners in the car. Or, rather, that's what I did before I learned that air fresheners, too, constitute p.c.
posted by box at 4:22 PM on January 14, 2009
posted by box at 4:22 PM on January 14, 2009
Immediately after, they discovered that the warrant information was due to a clerical error.
Yes, it seems in this case the cops were playing by the rules and there was a screwup.
Guy still needs to go free, because while ideally it would be nice to let the police correct for simple mistakes, that would also allow them to make "mistakes."
posted by TheOnlyCoolTim at 4:24 PM on January 14, 2009 [1 favorite]
Yes, it seems in this case the cops were playing by the rules and there was a screwup.
Guy still needs to go free, because while ideally it would be nice to let the police correct for simple mistakes, that would also allow them to make "mistakes."
posted by TheOnlyCoolTim at 4:24 PM on January 14, 2009 [1 favorite]
What is this Fourth Amendment you're referring to?
Obama: No warrantless wiretaps if you elect me - January 8, 2008
Obama's surveillance vote spurs blogging backlash - July 11, 2008
posted by Joe Beese at 4:29 PM on January 14, 2009
Obama: No warrantless wiretaps if you elect me - January 8, 2008
Obama's surveillance vote spurs blogging backlash - July 11, 2008
posted by Joe Beese at 4:29 PM on January 14, 2009
I'm expect the sheriff's department of Coffee County is going to now throw itself into its undoubtedly already-vigorous attempt to find out how a revoked warrent could remain in the database for months, and to prevent it from ever happening again, with renewed zeal, spurred on by this inspiring show of confidence in its accurate recordkeeping from Chief Justice Roberts.
posted by enn at 4:33 PM on January 14, 2009 [1 favorite]
posted by enn at 4:33 PM on January 14, 2009 [1 favorite]
From the air freshener case linked above:
¶3 The trooper testified that the presence of multiple air fresheners, coupled with the occupants' act of lighting cigarettes on his approach, aroused in him a suspicion that Hechtle may have been attempting to mask other odors. Nonetheless, the trooper ignored his suspicions, informed Hechtle of the reason for the traffic stop, and asked him for his license and registration. However, as the encounter progressed the trooper's suspicions heightened because Hechtle was "being overly helpful with the situation." As described by the trooper: "When people are overly helpful and want their ticket and they want to leave, they have something they are trying to hide."
posted by mecran01 at 4:35 PM on January 14, 2009
¶3 The trooper testified that the presence of multiple air fresheners, coupled with the occupants' act of lighting cigarettes on his approach, aroused in him a suspicion that Hechtle may have been attempting to mask other odors. Nonetheless, the trooper ignored his suspicions, informed Hechtle of the reason for the traffic stop, and asked him for his license and registration. However, as the encounter progressed the trooper's suspicions heightened because Hechtle was "being overly helpful with the situation." As described by the trooper: "When people are overly helpful and want their ticket and they want to leave, they have something they are trying to hide."
posted by mecran01 at 4:35 PM on January 14, 2009
We're not as far from Nazis requesting your papers at checkpoints as we might like to think we are.
See: Transportation Security Administration.
posted by Malor at 4:36 PM on January 14, 2009
See: Transportation Security Administration.
posted by Malor at 4:36 PM on January 14, 2009
Despite the utter irony of trying to salvage a crappy editorialized post and turn it into a good thread when the subject is the exclusionary rule (or, as it is colloquially characterized as, "the fruit of the poisonous tree"), I would note that the actual text of the opinion is available and would be worthwhile to include in any post about the subject and to look at when discussing what the Court wrote.
This opinion explicitly does not abrogate the exclusionary rule, which itself is not a inviolate constitutional principle but rather a judge-made evidentiary rule. The first question to be asked of this opinion is whether this opinion is a fundamental change or whether we are just playing in the interstices here. I think it is the latter. The case can be made, and Todd Goldstein makes the effort, that this is an opinion of significance. However, I fail to see any bright line rule created by this opinion that there is a good faith exception. Rather, I see an opinion that is likely going to be limited to its facts. Certainly if there had been a major constitutional shift with this opinion, then the dissenters would have squawked louder. The dissent seems to treat this as a limited ruling that is wrong on its merits. Moreover, I do not see why this opinion moves the ball very far from where it was left in Arizona v. Evans.
The exclusionary rule is a balance of competing interests. It is a balance that seeks to permit the authority of the state to do its law enforcement functions with the protections afforded by the Fourth Amendment. As with any balancing rule, it is never going to be a bright line rule. This opinion shows the Court making a balancing decision and recognizing that the exclusionary rule is not a defined bright line rule.
I do not know how to respond to the hypothetical questions raised here of what to do with cops who are intentionally violating the law. If you start from the assumption that the police are bad actors with no regard for the law, then the entire concept of criminal procedure fails. Luckily we do not do that. Rather, we craft reasonable rules to protect the constitutional limitations on state authority as articulated in the amendments. At the end of the day, we have judges sitting on that trial bench who get to listen to the arguments and determine whether the rule applies or whether the officers are fabricating pretexts. That's the check.
The starting point for application of the exclusionary rule has to be whether the police officer's actions were objectively reasonable. It seems that the actions here were objectively reasonable. To the extent the exclusionary rule has any deterrent effect, the statement that "the exclusionary rule still applies in cases of negligence" does not deter the officer; the very fact that the act was negligent renders the issue of whether the rule was deterrence moot.
So at the end of the day, this opinion seems to do little other than confirm that trial court's will be left to determine whether the conduct of an office is objectively reasonable in determining whether to apply the evidentiary exclusionary rule. That strikes me as reasonable.
posted by dios at 4:47 PM on January 14, 2009 [1 favorite]
This opinion explicitly does not abrogate the exclusionary rule, which itself is not a inviolate constitutional principle but rather a judge-made evidentiary rule. The first question to be asked of this opinion is whether this opinion is a fundamental change or whether we are just playing in the interstices here. I think it is the latter. The case can be made, and Todd Goldstein makes the effort, that this is an opinion of significance. However, I fail to see any bright line rule created by this opinion that there is a good faith exception. Rather, I see an opinion that is likely going to be limited to its facts. Certainly if there had been a major constitutional shift with this opinion, then the dissenters would have squawked louder. The dissent seems to treat this as a limited ruling that is wrong on its merits. Moreover, I do not see why this opinion moves the ball very far from where it was left in Arizona v. Evans.
The exclusionary rule is a balance of competing interests. It is a balance that seeks to permit the authority of the state to do its law enforcement functions with the protections afforded by the Fourth Amendment. As with any balancing rule, it is never going to be a bright line rule. This opinion shows the Court making a balancing decision and recognizing that the exclusionary rule is not a defined bright line rule.
I do not know how to respond to the hypothetical questions raised here of what to do with cops who are intentionally violating the law. If you start from the assumption that the police are bad actors with no regard for the law, then the entire concept of criminal procedure fails. Luckily we do not do that. Rather, we craft reasonable rules to protect the constitutional limitations on state authority as articulated in the amendments. At the end of the day, we have judges sitting on that trial bench who get to listen to the arguments and determine whether the rule applies or whether the officers are fabricating pretexts. That's the check.
The starting point for application of the exclusionary rule has to be whether the police officer's actions were objectively reasonable. It seems that the actions here were objectively reasonable. To the extent the exclusionary rule has any deterrent effect, the statement that "the exclusionary rule still applies in cases of negligence" does not deter the officer; the very fact that the act was negligent renders the issue of whether the rule was deterrence moot.
So at the end of the day, this opinion seems to do little other than confirm that trial court's will be left to determine whether the conduct of an office is objectively reasonable in determining whether to apply the evidentiary exclusionary rule. That strikes me as reasonable.
posted by dios at 4:47 PM on January 14, 2009 [1 favorite]
The Exclusionary Rule is far too weak a safeguard for civil liberties. For emphasis: If the government violates your civil rights in its attempts to obtain inculpatory evidence against you, the only recourse you have under the Constitution in 99% of cases is that the evidence it obtained (sometimes) can't be used against you in a criminal action. Remember the important parts of that sentence are you and criminal action.
The violator of your constitutional rights isn't punished. The agency whose policy may have implicitly or explicitly encouraged indifference or outright disregard for your civil liberties escapes completely unscathed. At best, your case will be held up derisively as an example of a criminal "getting off on a technicality."
If you violate Class D controlled substances laws in most states, you could go to jail. If someone entrusted with the power of the government violates the Constitution, the supreme law of the land, they will almost certainly walk away with impunity and the District Attorney will try to convince a court of law that the illegally-obtained evidence should be admitted against you anyway. This FPP presents just one example of the many ways in which the DA can succeed.
Until there is some meaningful deterrent for constitutional violations, one whose severity begins to approach the threshold of the deterrents for having weed on your person, I expect this trend will continue. Every few generations, an imperial executive will come along and continue to chip away at the remainder of our civil liberties. Between those episodes of overt assaults on our freedoms, we'll have cops pushing the envelope because there's nothing for them to lose.
posted by Law Talkin' Guy at 4:54 PM on January 14, 2009 [2 favorites]
The violator of your constitutional rights isn't punished. The agency whose policy may have implicitly or explicitly encouraged indifference or outright disregard for your civil liberties escapes completely unscathed. At best, your case will be held up derisively as an example of a criminal "getting off on a technicality."
If you violate Class D controlled substances laws in most states, you could go to jail. If someone entrusted with the power of the government violates the Constitution, the supreme law of the land, they will almost certainly walk away with impunity and the District Attorney will try to convince a court of law that the illegally-obtained evidence should be admitted against you anyway. This FPP presents just one example of the many ways in which the DA can succeed.
Until there is some meaningful deterrent for constitutional violations, one whose severity begins to approach the threshold of the deterrents for having weed on your person, I expect this trend will continue. Every few generations, an imperial executive will come along and continue to chip away at the remainder of our civil liberties. Between those episodes of overt assaults on our freedoms, we'll have cops pushing the envelope because there's nothing for them to lose.
posted by Law Talkin' Guy at 4:54 PM on January 14, 2009 [2 favorites]
If you start from the assumption that the police are bad actors with no regard for the law, then the entire concept of criminal procedure fails. Luckily we do not do that.
Whew.
posted by Joe Beese at 4:54 PM on January 14, 2009 [1 favorite]
Whew.
posted by Joe Beese at 4:54 PM on January 14, 2009 [1 favorite]
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Scalia could not stop laughing.
posted by Joe Beese at 3:51 PM on January 14, 2009