TO REPLACE A DYING EXCLUSIONARY RULE.

TO REPLACE A DYING EXCLUSIONARY RULE.

Posted by:  Edmund R. Folsom, Esq.

Date:  July 13, 2016

In Utah v. Strieff, 579 U.S. __ (June 20, 2016), the U.S. Supreme Court continued to whittle away at the exclusionary rule. For the uninitiated, the “exclusionary rule” is a rule that prevents the government (both state and federal) from introducing evidence in a criminal trial if the evidence was gathered through a search or seizure that was “unreasonable” under the 4th Amendment to the U.S. Constitution.  At one time, the rule was thought to serve two purposes.  For one, it kept the courts from the sort of complicity in the illegality that would come from allowing tainted evidence into the temple.  For another, it was intended to deter police from violating the United States Constitution to gather evidence.  These days, the purity-of-the-temple rationale has been abandoned.  The deterrence rationale still holds some sway, but the Supreme Court has been careful to point out that the exclusionary rule is not to be applied to punish police for their misconduct.  Instead, it is applied solely to deter misconduct by depriving police of their ill-gotten gains.   In other words, if the evidence gathered by police in an illegal search can’t be used, there is no use in gathering evidence illegally.  By excluding illegally obtained evidence, the courts dis-incentivize the illegal gathering of evidence, so cops won’t bother to engage in the illegal behavior.  As students who have taken my criminal procedure class could tell you, I like to ask them how effective they think that “remedy” would be in other settings, if used to remedy other illegalities?  Caught embezzling $100,000.00…?  What if we take what you stole, give it back to your victim, and call it good?  You’d probably be sufficiently dis-incentivized not to bother with that again, right?   Or maybe you’d calculate that you usually get away with stealing, and if the only thing that happens when you get caught is the loot gets taken away, that makes for a pretty sweet downside–  What the hell, why not go for it?  Frankly, that’s exactly the calculus that often underlies illegal police searches and seizures.  It’s one thing if there’s a legal way to conduct the search and seizure, but if a warrant can’t be obtained, or if probable cause or reasonable articulable suspicion don’t actually exist, there’s only one way the officer is going to have a crack at gathering evidence, and that’s by plunging ahead anyway.  If the cop has a decent cover story, the evidence is coming in.  If the cover story doesn’t work, the evidence isn’t coming in.  That’s all?  What the hell, then.  Go for it!

Limiting application of the exclusionary rule solely to dis-incentivize illegal police behavior places the exclusionary rule on very week, wobbly legs.   And from there, the rule’s application is further limited.  First, only certain people are allowed to claim the benefit of exclusion.  To complain about an illegal search and seizure, a person must have “standing,” in that the search and seizure must have violated that person’s individual right to privacy.  Therefore, police might illegally search a house or a car, gathering evidence against multiple people in that house or car, and be allowed to use the ill-gotten evidence against everyone but the owner.  What the hell, right?  Why not go for it?

To this point, I have discussed the exclusionary rule in its full-strength application.   Now we should consider some exceptions to its full-strength application, which is where Utah v. Strieff comes in.  To begin, the exclusionary rule started life as kind of an unloved step-child, because it runs directly to the benefit of people who have committed crimes.  If police conduct an illegal search and/or seizure but find no evidence of a crime, what good does the exclusionary rule do for the person whose 4th Amendment rights were violated by that search and/or seizure?  None.  It is only when evidence of criminality is actually found that a person whose 4th Amendment rights were violated can benefit from exclusion of that evidence.  The exclusionary rule therefore allows the guilty to go free.  That’s such a bitter pill that the Supreme Court limits application of the exclusionary rule to cases where they deem that the benefits of exclusion (the rule’s hobbled, weak ability to deter solely by dis-incentivizing illegal police behavior) outweigh the rule’s “substantial costs” to society (letting the guilty go free).

For one thing, although the government can’t use illegally obtained evidence in the case-in-chief against a person who has standing, they still get to use the evidence to impeach the person if the person takes the witness stand and testifies in a way that is contradicted by the illegally obtained evidence.  And if a person with standing is on probation or parole, the government can use the illegally seized evidence against that person in a probation or parole revocation proceeding, but can’t use the evidence in its case-in-chief on a new criminal charge.  In these instances, the Supreme Court has determined that the costs of exclusion outweigh the benefits.   Then, as discussed in Strieff, there is the “independent source” rule that says evidence is not to be excluded because of an illegal search if it was gathered by legal means wholly independent of the illegality (again, the exclusionary rule is not applied to punish police for misconduct, merely to dis-incentivize misconduct).  Strieff also discusses the “inevitable discovery” rule, that illegally obtained evidence will not be suppressed if, although in fact discovered illegally, it would inevitably have been discovered by lawful means anyway.   And finally, Strieff discusses the “attenuation” rule, which states that evidence resulting from an illegal search and/or seizure is not to be suppressed when the connection between the illegal police conduct and the evidence is remote or has been interrupted by an intervening circumstance, where the interests protected by the 4th Amendment guarantee would not be served by suppression.

In Strieff, Salt Lake City, Utah, Police Detective Douglas Fackrell conducted surveillance on a house where he suspected drug activity was occurring.   Someone dropped an anonymous tip on the police that lots of people were stopping there for brief visits, raising the suspicion that someone was dealing drugs there. Fackrell saw Strieff leave the house.  Fackrell did not observe how long Strieff was at the house, but he decided to intercept Strieff and ask him what was going on there.  All agreed that Fackrell did not have reasonable articulable suspicion to lawfully seize Strieff under the 4th Amendment.   As Strieff walked to a nearby store parking lot, Fackrell detained him and asked him to produce his identification.  Once Strieff produced his I.D., Fackrell asked police dispatch to check his information on file and discovered there was an outstanding warrant against him for a traffic violation.   Fackrell arrested Strieff based on the warrant.  That allowed Fackrell to conduct a “search incident to arrest” of Strieff’s person, which turned up methamphetamine and drug paraphernalia.  Strieff was charged criminally, and he sought to suppress the evidence.  Because Fackrell did not have reasonable articulable suspicion that Strieff had engaged in criminal activity, his detention of Strieff in the first place was an illegal seizure under the 4th Amendment.  The entire issue in the case was whether the exclusionary rule should be applied as a consequence of the illegal search and seizure.  The Supreme Court held that exclusion was not appropriate because the evidence was too attenuated from the illegality to warrant suppression.

The attenuation analysis first looks at how closely in time the discovery of the evidence follows the unconstitutional conduct.  Here, the discovery of the evidence nearly immediately followed Strieff’s illegal seizure.  The next factor the Court examined was whether intervening circumstances were present between the unconstitutional action and the discovery of the evidence.  The Court found that the existence of the arrest warrant (or was it the discovery of the arrest warrant?) was an intervening circumstance that severed the connection between the unconstitutional act and the discovery of the evidence, and that the two were sufficiently attenuated to dissipate the taint of the unconstitutional act.  Finally, the Court examined the purpose and flagrancy of Fackrell’s stopping of Strieff.  The Court pointed out that the exclusionary rule’s purpose is to deter police misconduct, which purpose is only served when the police misconduct is purposeful or flagrant, versus merely negligent.  The Court found that Fackrell was legitimately suspicious of drug activity in the house and was merely negligent in stopping Strieff without reasonable articulable suspicion, instead of just asking Streiff if Strieff would speak to him.  Once Fackrell negligently effected Strieff’s illegal seizure, it was only a negligible additional burden to run a warrant check, and once the warrant check was done, Fackrell dug up his intervening circumstance in the form of the warrant.  Once the warrant was discovered, it was perfectly lawful for Fackrell to arrest Strieff, and once he arrested Strieff it was perfectly lawful to conduct a search incident to arrest, which turned up the drugs and paraphernalia.  So, it’s all good.  It’s so good, in fact, that cops now have a green light to illegally seize people (as long as they merely negligently lack reasonable suspicion, of course) and then demand identification so that they can ensure their safety from the person they have illegally stopped, knowing that if the encounter discloses an arrest warrant for the person, they’ll be allowed to engage in a full-blown search incident to arrest that might turn up God knows what.  If nothing turns up… whatever… sue me.  If something turns up, bingo!  So, what the hell?  Go for it, right?

In dissent, Justice Sotomayor pointed out the vast number of arrest warrants that are outstanding at any given time.  For instance, the U.S. Department of Justice determined that, at one recent point, in Ferguson Missouri, population 21,000, there were arrest warrants out for 16,000 of its residents.  Justice Sotomayor also did the following run-down (I have omitted internal case citations) of the latitude Supreme Court jurisprudence has given the police to breach the initial constitutional threshold and start boring in:

This Court has allowed an officer to stop you for whatever reason he wants– so long as he can point to a pretextual justification after the fact.  That justification must provide specific reasons why the officer suspected you were breaking the law, but it may factor in your ethnicity, where you live, what you are wearing, and how you behaved.  The officer does not even need to know which law you might have broken as long as he can later point to any possible infraction– even one that  is minor, unrelated, or ambiguous.

The indignity of the stop is not limited to an officer telling you that you look like a criminal.  The officer may next ask you for your “consent” to inspect your bag or purse without telling you that you can decline. Regardless of  your answer, he may order you to stand ‘helpless, perhaps facing a wall with your hands raised.’ If the officer thinks you might be dangerous, he may then “frisk” you for weapons.  This involves more than just a pat down.  As onlookers pass by, the officer may ‘feel with sensitive fingers every portion of [your] body.  A thorough search [may] be made of [your] arms and armpits, waistline and back, the groin area about the testicles, and the entire surface of the legs down to the feet.’

The officer’s control over you does not end with the stop.  If the officer chooses, he may handcuff you and take you to jail for doing nothing more than speeding, jaywalking, or ‘driving [your] pickup truck… with [your] 3-year-old son and 5-year-old daughter… without [your] seatbelt fastened.’  At the jail, he can fingerprint you, swab DNA from the inside of your mouth, and force you to ‘shower with a delousing agent: while you ‘lift [your] tongue, hold out [your] arms, turn around, and lift [your] genitals.’ Even if you are innocent, you will now join the 65 million Americans with an arrest record and experience the ‘civil death’ of discrimination by employers, landlords, and whoever else conducts a background check.  And, of course, if you fail to pay bail or appear for court, a judge will issue a warrant to render you “arrestable on sight” in the future.

And now we also know the officer does not necessarily need even a valid pretextual justification for stopping someone, as long as it turns out there is in fact an outstanding warrant for the person, at which point– Dig in!  So, what the hell?  Go for it!

Another thing Justice Sotomoyor does in her dissent is repeatedly refer to Fackrell’s stop of Strieff as “illegal” and “against the law,” which is entirely accurate.  And that raises the question, for me, why we don’t treat a police officer’s violation of a person’s rights under the United States Constitution at least as seriously as fishing without a license, driving an unregistered motor vehicle, or driving with an expired driver’s license, which are criminal offenses.  We have so many criminal offenses for so many relatively minor things.  Why is it not a criminal offense to violate the 4th Amendment to the United States Constitution?  Is violating the 4th Amendment to the United States Constitution not as serious as fishing without a license?  Call me crazy, but I think making it a crime to violate a person’s 4th Amendment rights would eliminate just about all of the problems that flow from a hobbled, ineffectual exclusionary rule and the high cost of letting the guilty escape when it is applied.   Making it a crime to violate the 4th Amendment would completely change the calculus for the police officer.  Instead of looking at a potential exercise of authority against a citizen from the standpoint of how much he can likely get away with, the officer would have to calculate that it is actually illegal to violate the 4th Amendment and that if he does so he will be liable to criminal prosecution, just as he would if he fished without a license.  Instead of calculating that the worst that will happen is whatever evidence he gathers won’t be usable if a court deigns to apply the exclusionary rule, the cop would have to calculate that he’d better make sure of his justification, because if he doesn’t he risks actually being punished for his constitutional illegality.  See how that shifts the burden of the constitutional violation onto the person who commits it?   And it has the additional benefit of  exposing an officer to significant consequences for illegally searching and seizing a wholly innocent person, on whom no evidence is found, in addition to those as to whom the officer happens to find evidence.  We could probably dispense with the exclusionary rule altogether!  And since dispensing with the exclusionary rule by strangling it is the direction the Supreme Court is seemingly headed anyway, it’s high time to explore other, more effective ways to guard against illegal governmental incursions onto 4th Amendment rights.  If the criminal sanction becomes our line of protection against 4th Amendment violations, we also won’t have to worry anymore about the exclusionary rule letting the guilty go free.  Their prosecutions can go forward, along with those of constitution-violating police officers.

Would it have a chilling effect on police to require them, under threat of potential criminal sanction, to be certain of reasonable articulable suspicion or probable cause before they carry out a search or seizure?   I have complete confidence that it would chill the attitude of:  What the hell?  Go for it!  But in any event, courts are constantly pointing out what low standards reasonable articulable suspicion and probable cause are.  That won’t change; they will continue to be low standards, but why not insist that they be met?  On the other hand, we should not criminalize an officer’s 4th Amendment violation unless it is committed with at least criminal negligence– a gross deviation from the standard of care of a reasonable and prudent person in the circumstances.  In fact, we could make it only a Class D or E crime (a “misdemeanor”) to commit a 4th Amendment violation recklessly or with criminal negligence.  But, maybe it should be a Class C crime or higher (a “felony”) for an officer to violate a person’s 4th Amendment rights intentionally or knowingly.

I guarantee this would result in fewer illegal searches and seizures, which would mean fewer interactions between police and citizens of the type now inflaming the nation, where each side fears the potential for attack from the other, and sometimes one or the other ends up dead.  The criminal sanction would be a much more effective deterrent to police misconduct than the exclusionary rule, without the exclusionary rule’s costly downside.   So why don’t we treat violations of the 4th Amendment of the United States Constitution at least as seriously as we treat (other forms of) fishing without a license?  Is it because we believe police can’t do their jobs effectively unless we allow them leeway to commit 4th Amendment violations with no realistic risk of personal consequence? That might be it– that and the fact that, for most of us, it’s only someone else’s ox getting gored anyway.  I can’t really think of another reason we default to a weak and judicially-despised exclusionary rule as our sole bulwark against the illegal searches and seizures conducted day-in, day-out, all over this Country, without any meaningful consequence for those who carry them out.  And if your answer is that the threat of civil lawsuits is an effective deterrent, how’s that been working out?



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