EXCLUSIONARY RULE, PART 3.
Posted By: Edmund R. Folsom, Esq.
Date: August 5, 2016
Alright then, let me finish this business about the illusory promise of the 4th Amendment. Parts 1 and 2 are here https://edfolsomlaw.com/2016/07/replace-dying-exclusionary-rule/ and here https://edfolsomlaw.com/2016/07/exclusionary-rule-part-2/. What does it mean to have a constitutional guarantee that certain personal protections “shall not be violated,” and yet when government agents routinely violate those protections there is nothing to be done about it? What is the value of the guarantee? A uniformly enforced town ordinance against dogs running at large might more effectively control behavior than a seldom-enforced constitutional guarantee against unreasonable searches and seizures. Yet police are allowed to routinely violate the 4th Amendment without consequence. No lawsuit will be brought for the vast majority of 4th Amendment violations. The exclusionary rule, for whatever deterrent value it might have if allowed to operate at full strength, is so watered-down it increasingly fails to provide protection against the typical 4th Amendment violation. Before going further, I will say again that I don’t blame the police for this state of affairs. We have collectively exercised our discretion not to enforce the constitutional guarantee meant to control their behavior. We send police out to do a job and we provide them with their rules of engagement. When those rules are that only the most flagrantly, obviously purposeful violations of the 4th Amendment carry consequences, how can we fault police for not letting the 4th Amendment stand in the way of all other efforts to root out the bad guys?
What might we do differently?
Legislate Exclusion: If we chose to, we could enact legislation calling for exclusion of evidence gathered through an unreasonable search or seizure. As an example, in Maine, 16 M.R.S. §645 creates an exclusionary rule for electronic device content information not gathered in compliance with procedures set forth in 16 M.R.S. §§641-644, while 16 M.R.S. §650-A sets conditions for the admissibility of electronic device location evidence, requiring compliance with 16 M.R.S. §§648-650. These statutory requirements may go beyond what the 4th Amendment requires, but the Maine Legislature has determined that the statutory requirements are needed to limit police intrusions, and that when police do not comply evidence must be excluded. In this sense, the statutory exclusionary rule is broader than the Supreme Court’s exclusionary rule, and yet it is narrower in the sense that it only applies in the particular context of searches for electronic device content and location evidence. But, legislation creating an exclusionary rule for violations of the 4th Amendment to the U.S. Constitution or article 1, section 5 of the Maine Constitution would suffer many of the same problems inherent in the judicially-created exclusionary rule– the more exceptions, the lower the cost but the lower the effectiveness; the fewer exceptions, the higher the effectiveness but the higher the cost.
Contempt Findings: In his essay “Replacing the Exclusionary Rule: Fourth Amendment Violations as Direct Criminal Contempt,” 85 Chicago-Kent L. Rev. 241 (2009) http://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=3741&context=cklawreview, Professor Ronald Rychlak argues that courts should punish serious police violations of the 4th Amendment as criminal contempt, under the theory that such conduct exhibits contempt for judicial interpretation of 4th Amendment requirements. Contempt findings would be less “costly” than exclusion, in that this remedy would not result in a guilty defendant escaping punishment. On the other hand, the remedy would only apply in contexts already reached by the exclusionary rule– it would do nothing to reach 4th Amendment violations against the innocent. Because it would only reach what a court would deem serious, contemptuous 4th Amendment violations, it would also be unlikely to deter common, low-level police misconduct, blindness born of stupidity, etc., so the deterrent effect would probably be no greater than that of the exclusionary rule. And, the courts would have to agree with professor Rychlak that contempt is an appropriate fit. All-in-all, using contempt to remedy 4th Amendment violations would provide a fairly ineffectual, spotty response to 4th Amendment violations, typical of what we already get when we rely solely on the judiciary to enforce 4th Amendment protections.
Small Claims Courts for 4th Amendment Violations: Another idea was raised by Professor Richard Myers, II, in his essay “Fourth Amendment Small Claims Court,” 10 Ohio State Journal of Crim. Law 567 (2013) http://moritzlaw.osu.edu/students/groups/osjcl/files/2013/03/7.-Myers.pdf Professor Myers recommends the creation of a small claims court to investigate and adjudicate claims of 4th Amendment violations. As for potential advantages, a small claims system would not involve exclusion of evidence, so it would not allow guilty people to escape punishment. Also, this system would provide a place for innocent people subjected to relatively low level 4th Amendment violations to air their grievances and receive some level of compensation. Myers’ idea is for small claims courts to initially supplement the exclusionary rule and other existing remedies, until such courts become effective enough to replace the exclusionary rule. Claims would be lodged against police departments, and the departments would pay the resulting judgments. The idea here is for the departments to feel enough of a pinch to effectively train and discipline their officers. Myers suggests a system that would award judgments of $100.00 for stop and frisk violations, $1,000.00 for search warrant violations, and up to $3,000.00 for actual damages. Personally, I cannot imagine anyone bothering to litigate a small claims action for a stop and frisk violation for potential compensation of $100.00, and I cannot imagine a police department being deterred from committing stop and frisk violations by having to pay that sum. For a small claims system to work, I suspect the amounts at stake would need to be much higher.
4th Amendments Violations as a Criminal Offense: In installment 1 of this 3-part exercise, I suggested making it a crime to commit a 4th Amendment violation intentionally, knowingly, recklessly or with criminal negligence. Oh I know, that’s just crazy, right? The criminal laws are for the civilian population. We can’t possibly make it a crime for government agents to intentionally, knowingly, recklessly or with criminal negligence violate the right of citizens to be free from unreasonable searches and seizures, just because the U.S. Constitution says that right “shall not be violated.” I’m sure no legislature will pass such a law, and I’m also sure that apprehension over the chilling effect it might have on law enforcement if we were to enforce 4th Amendment compliance in this way will continue to invite 4th Amendment violations.
Statewide Disciplinary Boards: How about subjecting police to a disciplinary board? I don’t mean in-house stuff, where police internal affairs people review complaints against their fellow officers. I mean the kind of disciplinary boards in place for lawyers and doctors, with codes of conduct, a system for reviewing grievances, hearings panels made up of both practitioners and members of the public, and a system that metes out public discipline, including probationary periods, suspensions, and loss of professional license. My stats are a little old, but according to the American Bar Association, in 2012 there were 3,865 lawyers licensed to practice in Maine. According to the U.S. Bureau of Justice Statistics, in 2008 there were 2,569 police officers working for 146 law enforcement agencies in Maine. If the Maine Board of Bar Overseers can handle grievance claims for 3,865 lawyers, it is entirely possible to establish a similar arrangement to handle grievances for 2,569 police officers. Establish a code of conduct, with a central tenet that a violation of the 4th Amendment is a violation of the code of conduct for which discipline may be imposed. Create a system for the filing of grievances, and impose discipline when a violation is established. Put some police-officer skin in the 4th Amendment game and we will see police take 4th Amendment protections much more seriously, as a right to be respected, not just an obstacle to be dodged or skirted. If we we were to also make it a crime to intentionally or knowingly violate the 4th Amendment–leave out recklessly or with criminal negligence– we would shore up 4th Amendment protections enormously.
Amend the 4th Amendment: We could amend the 4th Amendment to the U.S. Constitution to reflect our evident consensus on the protections it should afford. Something like the following would work: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, except to the degree the Supreme Court, through cost/benefit analysis, deems allowable…” That would have the upside of honesty. The downside is the trouble it would take to amend the U.S. Constitution– 2/3 of each house required to pass the proposal and then 3/4 of the states needed to ratify it– just to achieve honesty, which has virtually no currency in government anyway.
Or We Could Just Leave Things the Way They Are: We could just let things continue to slide. Chances are, most of us won’t have to worry about unreasonable searches and seizures anyway. If we live in decent neighborhoods, drive relatively new cars and stay off the roads late at night, we can seriously reduce our chances of being targeted for free-ranging, law enforcement fishing expeditions. Of course, those who live in crappy neighborhoods, drive crappy cars, and drive around after 11:00 p.m. will continue to provide rich fishing grounds for law enforcement trawling, but whatever… Who cares about those guys?