THE BLOG

Yet Another Reason to Fear a McCain Supreme Court

11/09/2008 05:12 am ET | Updated May 25, 2011

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.