Yet Another Reason to Fear a McCain Supreme Court

There are plenty of reasons to fear the possibility of a McCain-appointed Supreme Court justices, but the future of the exclusionary rule is one we don't discuss much. The exclusionary rule is the legal principle that evidence obtained through improper means cannot be used against a defendant. So anything that turns up during an illegal search is worthless in court. It's a pretty basic concept, although surprisingly it wasn't actually explicitly mandated by the Supreme Court until 1961, in the case of Mapp v. Ohio.

The exclusionary rule has grown into one of our most important checks on police misconduct. Because police officers know that improperly-obtained evidence cannot be entered in court, they are more likely to follow the strict constitutional requirements for searches.

The rule is also, perhaps surprisingly, unique to the United States. Writing in the New York Times in July, Adam Liptak observed that we are the "only country to take the position that some police misconduct must automatically result in the suppression of physical evidence." Most other countries use a theory of "balancing," meaning that the egregiousness of the constitutional violation is weighed against the value of the evidence obtained in order to determine whether the evidence can be used. So, say the police search my pickup truck without probable cause or permission and find a half-ton of cocaine in the flatbed. In a foreign court I could still face charges if the court determined that the seriousness of having a half-ton of cocaine outweighed, say, a little thing like my rights against unreasonable search and seizure. But in America, we have our blessed constitution, so thankfully no such arbitrary "balancing" tests occur. If the police conduct an illegal search, or follow improper procedure, any evidence obtained is useless. Period.

But that may be changing. On Tuesday the Court heard oral arguments in the case of Herring v. United States, which poses the question of "whether the exclusionary rule should be applied to bar evidence obtained through the search of a defendant whom the police believed had an outstanding warrant but who actually didn't." Both parties in the case agree that the police erred, but the government maintains that the evidence obtained should be admissible nonetheless.

And the Court may be responsive to the government's argument. In 2006, in the case of Hudson v. Michigan, the court held by a 5-4 majority that evidence obtained by officers who committed a constitutional violation in the conduction of a search (in this case, the failure of officers to knock on the door and announce their presence before executing the search) could be used against a defendant in some cases. Now, I wonder if you can guess which justices were the 5, and which were the 4.

Writing for the majority in that case, Justice Antonin Scalia wrote that:

"Suppression of evidence... has always been our last resort, not our first impulse. The exclusionary rule generates 'substantial social costs,'... which sometimes include setting the guilty free and the dangerous at large."

So the Court's opinion on the exclusionary rule is beginning to change. And Justice Scalia reiterated his position in oral arguments in the Herring case on Tuesday, when he said:

"Things have changed a whole lot since we adopted the exclusionary rule...policing has become much more professional...to apply the severe remedy that you propose...in this area at this date seems to me excessive."

But even if the number of instances of police misconduct were lower today than in the past, and the police are more "professional" (whatever that means), surely the exclusionary rule still has a great deal of value. If we allow tainted evidence into court, then for the police the ends will justify the means. As long as they can get a hold of something incriminating, the steps they have taken to obtain it will not matter, even if those steps include violations of constitutional rights.

The implications of removing the rule are so enormous that it is surprising that the Court is even considering removing or watering down the effects of this valuable rule. By doing so, the Court reveals that it is out of touch with the day-to-day realities of the American criminal justice system. In my experience, police officers are already mainly concerned with what the end result of a search is, rather than how they go about performing it, and often dig up questionable probable cause, or try to badger people into consenting to searches. In these cases, the exclusionary rule is one of the only ways of holding police accountable.

But conservative justices on the Court do not care for the exclusionary rule, and the more of them that sit on the bench, the greater the threat to its existence. Those who value their civil liberties have much more to fear from a McCain Court than the overturning of Roe v. Wade. The exclusionary rule is one of our country's most unique and powerful protections against government misbehavior, and if we allow Stevens and Ginsburg to be replaced with more Scalitos, we can wave it a fond goodbye, as police gain greater and greater incentives to disregard our rights without consequence.

Comments

[LeftRight]

A couple months ago my 14 year old daughter was home alone. The police showed up at our house to perform a search for her friend. When she asked if they needed parental permission to enter the home, they informed her that, no, they didn't. When I complained to the police about it, I was informed that they were only searching for her friend, and that even if they'd found pot plants growing they couldn't have done anything.

Nobody seemed to understand that my concern was not what they might find, but that they were illegally entering my home. And now you're telling me that the SCOTUS may end up changing the rules so that if I DID have pot plants growing in my house, and they lie to my daughter to get in the door they can USE it against me???? That's BULLS**T!!!!!!

[bannorhill]

I fear a court that reads things into the constitution that are not there as much as I fear a court that ignores things that are clearly written there.

The bill of rights was written in clear common language so every American could understand it. Liberal Washington DC spent almost 30 years violating the right to bear arms before the Supreme Court decided "the right to bear arms" meant "the right to bear arms". During that time DC crime skyrocketed and law abiding citizens could not protect themselves. I fear if Roberts and Alito were not on the court the Justices would have found "the right to bear arms" did not mean "the right to bear arms".

Even more frightening is the gradual errosion of my right to decide how to spend my money. I would like the right to decide how to invest 14% of my pay for retirement. The government took that right from me and called it social security. It looks like a government run Ponzi scheme. I would like the right to invest 1% of my pay in a medical retirement fund but the government takes it and calls it medicare. Politicans hide it with words like "fairness" and "patriotism" but slowly and in small steps they take away my freedom of choice as we move to a more and more socialistic government.

I only hope the government or courts restore our freedoms.

[LewDan]

By your definition of "Socialism" the United States was FOUNDED as a "Socialist" country, the Constution of the United States begins "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare...." By your definition, "socialism". The word for what you seem to think as "freedom" is "anarchy".

Fortunately you don't know what you're talking about. The word for people working together for the common good is "civilization." We can all be greatfull that unlike you and your conservative republican soul mates, most Americans are civilized.

But you have every right to your "freedom". Just don't use any of the roads, drink the water, expect police and fire protection, or use of any services or utilities that the rest of us "socialists" paid for. Since you want to go it alone, you need to do everything by yourself. You might try Alaska. There's still wilderness there free of civilization and I hear their governor claims she's is just like you.

[schatsie]

LewDan wonderful response!

[bannorhill]

Webster defines socialism as "any of various economic and political theories advocating collective or governmental ownership and administration of the means of production and distribution of goods".

Right now the Federal Government owns (through Fannie Mae and Freddie Mac) most of the mortgages in the US. That is socialized control of mortgages.

Now Obama wants us to move towards laws requiring 100% medical insurance. That is government administration of health care...socialism.

Now the government controls the vast majority of retirement funds with social security. That is socialized retirement.

Socialism grows in Washington.

We fought a revolution so individuals could be free from an out of touch government meddling in individual lives. We revolted over a three cent tea tax. How would they feel about a 20% income tax, 14% social security tax, 1% medicare tax, 7% sales tax, 2% state tax, 70 cent gas tax, $1.25 tobacco tax, estate taxes, import taxes, not including the hidden taxes we pay. The King of England saw himself as a father watching out for his children in the colonies. The revolution stopped that. Now we have Washington moving the same way.

I have no issue with taxes being used for the "common good". That is right and necessary. If you read the Preamble you quoted it calls for "domestic tranquility" not "individual tranquility". It calls for "common defense" not "individual defense". It calls for "General welfare" not "Individual welfare". These are all common not individual governmental responsibilities.

[JRsNana]

I'll bet you hate paying taxes too doncha bannorhill?
Would you "decide" to spend your money on roads or education? My guess is no.
And the erosion of your rights has been almost made complete by the Bush Administration.

[LeftRight]

See, cause that's funny to me. The only problem that I have with the court is when they take rights away that are there. I agree with you that it was a good thing that they ensured the second amendment is here to stay. Now I want my first, and third, and fourth, and fifth, and sixth, and seventh, and eighth, and ninth, and tenth, etc.....

The problem with the rightwingers is that they always point to the second as the be all and end all, and who gives a damn about the rest, since if you're not doin' nuttin' wrong, ya got nuttin' ta fear! The fact of the matter is that ALL of our rights are required, even the ones that the SCOTUS "adds" in your opinion!

[bannorhill]

Where have they taken those rights?

[suec03]

Is this one of the reasons the McCain campaign is bringing up William Ayers? Now that OJ Simpson has been convicted of felonies and is sure to go to prison, they want to right the perceived wrong that William Ayers "got off" because government misconduct derailed his prosecution. I think this is a hail Mary or dogwhistle call to their base. I hope the rest of the country will just recognize that Professor Ayers has made peaceful contributions for years, Barack Obama is not responsible for William Ayers' past activities, and we should all just MOVE ON. The exclusionary rule is consistent with the concerns of the Founding Fathers when they adopted the Bill of Rights along with the Constitution. The exclusionary rule must be protected. Elect two constitutional law teachers to the White House! Obama-Biden '08!

[schatsie]

Good points.. Even McCain himself has changed...He is no longer crashing planes like when he was in his 20s or hanging out with Keating when he was 50....