• REPEAL OF EVIDENCE RULING ON THE HORIZON

By: David Zwanetz, Esq.

The exclusionary rule is a legal principle in the United States, under constitutional law, which holds that evidence collected or analyzed in violation of the defendant’s constitutional rights is sometimes inadmissible for a criminal prosecution in a court of law. It is prophylactic rule formulated by the judiciary in order to protect individuals’ constitutional rights. However, in some circumstances at least, the exclusionary rule may also be considered to follow directly from constitutional language, such as the Fifth Amendment’s command that no person “shall be compelled in any criminal case to be a witness against himself” and that no person “shall be deprived of life, liberty or property without due process of law.”

The exclusionary rule is designed to provide a remedy response to prosecutors and police who illegally gather evidence, in violation of the Constitution, by conducting unreasonable searches and seizure or compelled self-incrimination.  Clearly, as an attorney focusing exclusively in the area of criminal defense, specifically Howard County criminal defense, the exclusionary rule is paramount importance.  Unfortunately, however, the exclusionary rule is in grave jeopardy.

While the assault on the exclusionary rule is currently gaining full steam, it began in 1983 with a young lawyer in the Reagan White House who worked vigorously on a “the campaign to amend or abolish the exclusionary rule.”  The Reagan administration’s attacks on the exclusionary rule never gained much steam. The problem is, however, that the young passionate lawyer from the Regan Administration was John G. Roberts Jr., and he is now the chief justice of the United States Supreme Court.

January 14, 2009, Chief Justice Roberts, writing for the majority in Herring v. United States, a 5-to-4 decision, took a big step toward the goal he proposed a quarter-century before. Taking aim at one of the towering legacies of the Warren Court, its landmark 1961 decision applying the exclusionary rule to the states, the Chief Justice’s majority opinion established for the first time that unlawful police conduct should not require the suppression of evidence if all that was involved was isolated carelessness. That was a significant step in itself. More important yet, it suggests that the exclusionary rule may become a legal remnant in the very near future.

The Herring decision “jumped a firewall,” said Kent Scheidegger, the general counsel of the Criminal Justice Legal Foundation, a victims’ rights group. “I think Herring may be setting the stage for the Holy Grail,” he wrote on the group’s blog, referring to the overruling of Mapp v. Ohio, the 1961 Warren Court decision.

Justice Samuel A. Alito Jr., joined the Herring decision and has been a reliable vote for narrowing the protections afforded criminal defendants since he joined the court in 2006.   Justice Alito replaced Justice Sandra Day O’Connor, who was considered a moderate in criminal procedure cases.  With Alito’s replacement of O’Connor, there could be enough votes to eradicate the exclusionary rule altogether.  The four certain votes are Chief Justice Roberts, Justice Alito, Justice Antonin Scalia and Justice Clarence Thomas, who is also an alumni of the Reagan administration.

The fate of the rule will to turn on the views of Justice Anthony M. Kennedy.  It has been said that the liberal and conservative wings are eagerly courting Justice Kennedy’s vote Kennedy’s vote, could settle the issue once and for all.  Now with Souter’s retirement on the horizon, we are entering a whirlwind of unknown possibilities.
Currently, the United States takes a distinctive approach to the exclusionary rule, requiring automatic suppression of physical evidence in some kinds of cases. That means, in theory at least, that relatively minor police misconduct can result in the suppression of conclusive evidence of terrible crimes.  Other nations balance the two interests case by case or rely on other ways to deter police wrongdoing directly, including professional discipline, civil lawsuits and criminal prosecution.  This kind of multi-tiered approach seems to be where the Court is headed.
The Herring decision can be read broadly or narrowly, and its fate in the lower courts is unclear. The conduct at issue in the Herring case was an Alabama man, Bennie D. Herring, who was arrested on officers’ mistaken belief that he was subject to an outstanding arrest warrant.  However, he had no warrant – the mistake was due to poor recordkeeping in a police database rather than a mistake by an officer on the scene.  Herring was searched incident to the improper arrest and gun and drugs were found on his person.  The theory remains that Herring should have never been arrested, thus never searched, and thus, the evidence must be excluded. However, the Supreme Court held that because the misconduct leading to Herring’s arrest was “attenuated from the arrest” the search was valid.

What this means is that while the exclusionary rule is still alive its veil is smaller and its Berlin wall of protection for victims of unconstitutional police misconduct had begun to fall.  The Herring decision is studded with sweeping suggestions that all sorts of police carelessness should not require, in Chief Justice Roberts’s words, that juries be barred from “considering all the evidence.”  A broad reading of these comments by the lower courts could invariably be the death of the exclusionary rule as a practical matter.

The nomination of Barack Obama is a proverbial sigh of relief for the defenders of the exclusionary rule and most, if not all, criminal defense practitioners.  At least for the time being, it appears that the five votes required to disavow the exclusionary rule will not be obtained. While I don’t like the result, I am in awe of Justice Roberts for beginning a quest in 1983 with the Regan administration and fighting his way, with that issue in his briefcase, to the most powerful position in the United States legal community where he can now, very seriously, finish what he began.

This article was written by David Z. David Z. also trains and competes in Brazilian Jiu Jitsu at Baltimore MMA school, Crazy 88 Brazilian Jiu Jitsu.