Posted by Edmund R. Folsom
June 16, 2020
Make Police Bear The Cost of Violating the 4th Amendment.
There’s lots of talk these days about reforming police, even defunding them. In the spirit of the times, I’ve dusted off and am re-offering some observations and ideas that first appeared in a series of posts on this blog in the summer of 2016: To Replace a Dying Exclusionary Rule, Exclusionary Rule, Part 2, and Exclusionary Rule, Part 3. A big part of the problem around negative perceptions of the police and episodes of police brutality lies in our failure to get serious when police violate the Fourth Amendment.
The Fourth Amendment to the United States Constitution provides, “The right of the people to be secure in their person’s, houses, papers and effects, against unreasonable searches and seizures, shall not be violated.” Rounding this out, Article VI of the U.S. Constitution provides, “This Constitution…shall be the supreme law of the land.” Given that the Constitution is the supreme law of the land and that it specifically provides that the right of the people in their persons, houses papers and effects against unreasonable searches and seizures shall not be violated, what exactly do we do about it when the police violate the supreme law of the land by conducting unreasonable searches and seizures? Not much, when you get right down to it. And because we don’t do much, police constantly push the margins of what they can get away with. They take chances violating our Constitutional protections against unreasonable searches and seizures, because there’s really no personal downside.
There needs to be a personal downside for police who violate the 4th Amendment, and it’s our fault that we have not ensured there is one. We reap what we sow. As a society, we criminalize countless low level offenses, send police out enforce them, essentially wink at the Constitutional violations police commit enforcing them, then brand the person who commits the offenses a criminal. Meanwhile, we impose no meaningful personal consequence on the officer who violates the supreme law of the land enforcing the land’s lesser laws. This results in lots of police/citizen interactions that leave citizens feeling abused, feeling their constitutional protections are a joke. That’s not good. A great place to start police reform would be to ensure that the supreme law of the land shall in fact not be violated without consequence, and that the consequence falls directly on the violator.
The exclusionary rule, keeping evidence out of a criminal trial because of a 4th Amendment violation, does very little to combat 4th Amendment violations. First, the consequence never falls directly on an officer who conducts an unreasonable search or seizure just to see what he or she might find. The worse that happens is the violation gets called-out later on by a court, so the State doesn’t get to use what the officer finds. Nothing ventured, nothing gained. Second, the exclusionary rule’s consequences fall on society at large. Its most direct benefit always runs to the wrongdoer who escapes punishment because evidence against him is suppressed. That makes the exclusionary rule very unpopular with the public, which leads to its third downside. Third, because the cost of exclusion falls on society, and its benefit runs directly to the wrongdoer, courts are so stingy about applying it — only for the purpose of deterring future police misconduct, pertaining to a person with standing, but only if the fruits are unattenuated, and then only if the violation meets certain flagrancy requirements — that courts guarantee, even when they do apply it, it will be very unlikely to serve its declared purpose.
But the ineffectual tool of exclusion is practically the only tool we employ against unreasonable searches and seizures, other than civil lawsuits. And the civil lawsuit does just about nothing to guard against the thousands and thousands of unreasonable searches and seizures that build up to a powder keg like the one just recently exploded. We need to get real about 4th Amendment protections. They are a firewall against government overreach, but that firewall is routinely breached. In fact, our policies encourage breaches.
Yes, there are things we can do about it. In the links above, I offer up a few dusted-off ideas.
Disclaimer: This blog is not legal advice. It is not to be taken as legal advice. It is for information purposes only.