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A Convicted Killer Goes Free for Constitutional Violations, and It’s the Cops’ Fault.

A Convicted Killer Goes Free for Constitutional Violations, and It’s the Cops’ Fault.

Posted by Ed Folsom, September 1, 2022.

The State recently dismissed a murder indictment against Bruce Akers even though Akers was already convicted of murder under the same indictment in January of 2020. In an outlandish example of fake news, the first sentence of a WGME, Ch. 13 story on these developments summarizes them as follows: “A Maine man who was once convicted of murder is now walking free because of a judge’s mistakes.”

If WGME’s disregard of truth isn’t intentional, it appears to at least be reckless. Akers was convicted in the first place only because the judge who presided at his trial mistakenly allowed evidence to be presented to the jury that should have been excluded on a motion to suppress. After Akers was convicted, Maine’s Supreme Judicial Court, the Law Court, determined on appeal that the evidence should have been suppressed because the police violated the Fourth Amendment to the U.S. Constitution when they gathered it. Akers walks free because the cops violated the Fourth Amendment, which is exactly the kind of thing that makes the exclusionary rule unpopular.

People tend to hate the exclusionary rule because, when it is applied, it often results in the guilty going free. Akers is one of the best examples I can think of. He admitted guilt to the police and led the police to his neighbor’s machete-hacked dead body on his property. A jury considered the evidence and convicted Akers of murder, unanimously and beyond a reasonable doubt. It would be easy to conclude that Akers’ case is one in which a guilty man has gone free because the cops screwed up, although it is the height of irresponsibility for a news organization to report that Akers is free because of the trial judge’s mistakes.

So why is society saddled with an exclusionary rule that results in the guilty going free when the police violate the Fourth Amendment? The exclusionary rule applies in all the states, including Maine, because of the 1961 U.S. Supreme Court case, Mapp v. Ohio. In Mapp, the Supreme Court declared that the exclusionary rule is “an essential part of both the Fourth and Fourteenth Amendments,” chiefly because there is no more effective tool that allows the courts to address police violations of the Fourth Amendment, and because the Fourth Amendment is applicable to the states through the Fourteenth.

But while there may not be a more effective way for the courts to address Fourth Amendment violations, that doesn’t mean the exclusionary rule is particularly effective at deterring Fourth Amendment violations. It just means that the exclusionary rule is the most effective means the courts have to address such violations. Is there another branch of government that might be better able to guard Fourth Amendment protections? Well, yes, there is. The way it would work is for the Supreme Court to continue to instruct us on how to avoid violating the Fourth Amendment, and for state legislatures to fashion more effective means to deter police from violating it.

We already know that the exclusionary rule is costly to society. And because it is so costly, the Supreme Court has declared a number of factors that should cause courts not to apply it even when police gather evidence through a Fourth Amendment violation. First, the Supreme Court has declared that the exclusionary rule’s sole purpose it is to deter police from committing future misconduct. The rule isn’t meant to keep unclean evidence out of the temple of justice, and it isn’t meant to right the particular wrong done to the particular person whose Fourth Amendment rights are violated. It is meant only to convey to police that if they violate the Fourth Amendment it won’t do them any good, because the evidence they gather won’t be usable in court (in the state’s case-in-chief, unless an exception applies).

But that rationale assumes circumstances in which police have the same or better ability to gather evidence in conformity with Fourth Amendment requirements as they have to gather it by ignoring Fourth Amendment strictures. In such circumstances, an officer might learn from examples of others who have done things the wrong way and have had their evidence tossed. By learning what to steer clear of, the officer can learn to do things the right way. But what if the circumstances are different? What if an officer knows he has no constitutional grounds to search or seize but has a really strong desire to fish around anyway? In that case, there’s no constitutional way to have a look-see. The officer’s only available choices are to either skip the exercise or go ahead and fish unconstitutionally. If the officer chooses to plunge ahead, and if the seizure or the search turns up something interesting, maybe the officer can cook up a post-hoc rationalization that causes the court to let the evidence in despite the constitutional violation.

This brings us to the exclusionary rule’s essential flaw — It is extremely costly to the public, yet it is very ineffective at protecting the Fourth Amendment rights of the law-abiding population. The cost is high because its application necessarily involves excluding incriminating evidence. Since the only people who can benefit from that are people who are incriminated by the excluded evidence, the benefit of exclusion will almost always flow to someone who has actually committed a crime. As for the exclusionary rule’s ineffectiveness at protecting the Fourth Amendment rights of the law-abiding public, for all those times that an officer goes fishing in violation of the Fourth Amendment and turns up nothing, there is no deterrent – the exclusionary rule is never applied in those instances because there’s nothing to exclude. Sure, go ahead and sue the cop who stops your vehicle and searches you and it without cause. And then get back to me and let me know how it worked out for you. The fishing expeditions continue, everywhere, unhindered by the exclusionary rule.

And what happens when the police officer with nothing but a strong hunch decides to go fishing and comes up with a pile of criminal evidence? There are a number of exceptions to the requirement of a search warrant, even to the requirement of probable cause in certain circumstances. The only thing a post hoc rationalizer has to do is convince the court that one of the exceptions fits. In that case, the court will declare the search or seizure reasonable under the Fourth Amendment. If the search or seizure was reasonable, nobody will ever even examine whether the exclusionary rule should be applied to the “fruits.” And even if a court does declare a search or seizure unreasonable, that doesn’t necessarily mean the exclusionary rule will be applied anyway.

The Supreme Court has declared that evidence is not to be suppressed if its gathering was “attenuated” from the Fourth Amendment violation, or if the officer’s misconduct was not deliberate, reckless or grossly negligent. The idea underlying the former is that evidence exclusion is too costly to apply to Fourth Amendment violations that are only marginally responsible for the evidence being gathered. The idea underlying the latter is that the exclusionary rule should only be applied when its sole purpose – deterrence of future police misconduct – is most strongly served. Yet, as we can see, the exclusionary rule can only deter police misconduct if the police have the possibility of conducting a search or seizure in conformity with Fourth Amendment strictures. It does virtually nothing to deter police from conducting illegal searches and seizures when there is no way to conduct them other than by violating the Fourth Amendment. The exclusionary rule is not only costly when applied, but because it has virtually no chance of deterring police misconduct in a vast swath of cases where police violate the Fourth Amendment, it is also inherently weak — it  has inherently low deterrence value.

In Akers’ case, the trial judge denied Akers’ motion to suppress the evidence that police gathered when they illegally searched his property, including the statements Akers made to police, and the victim’s body. Granted, the police searched Akers’ property without a search warrant. But the judge decided that the search fit certain exceptions that nevertheless made it reasonable under the Fourth Amendment. And even if the search didn’t actually fit those exceptions, the judge found that the exclusionary rule’s purpose would not be served by excluding the evidence. As a result of that ruling, the evidence was introduced against Akers at trial and he was convicted of murder and sentenced to 38 years in prison. On appeal, the Law Court ruled that the search of Akers’ property in fact violated the Fourth Amendment and that the exclusionary rule applies to the violations. That means all of Akers’ statements to police and all evidence other than the finding of the victim’s body on his property are out. But there was one possibility that the Law Court’s opinion left open regarding the evidence that the victim’s machete-hacked body was found on Aker’s property.

One exception that the U.S. Supreme Court has carved out of the exclusionary rule is the “inevitable discovery doctrine” exception: If police would inevitably have discovered the evidence even without the Fourth Amendment violation, the evidence should not be suppressed. The idea is that it’s a step too far to exclude evidence that would inevitably have been discovered entirely independent of the Fourth Amendment violation. Because Akers’ trial judge decided to let all the evidence in at trial on grounds that the search of the property was reasonable and that the exclusionary rule shouldn’t be applied even if the search was in fact not reasonable, the judge did not reach the State’s inevitable discovery argument. But, at the suppression hearing the State argued that routine police procedures governing searches for missing persons would inevitably have led them to the victim’s machete-hacked body even if they hadn’t illegally searched Akers’ property when they did. So the Law Court remanded (returned) the case to the trial court to decide the inevitable discovery issue and otherwise conduct proceedings in accordance with its opinion.

On remand, the trial judge ruled that the State’s evidence was not sufficient to establish the inevitable discovery of the victim’s body. At that point, the body and the evidence of its location were finally excluded from evidence, leaving the State with no usable evidence for a retrial. In light of this, the State dismissed the indictment.

Akers now walks free, although certainly not because of the trial judge’s mistakes. In fact, it’s only because of the judge’s mistakes that Akers sat in jail from April 2, 2019, the date of the ruling on the motion to suppress evidence, until recently.

But it sure does look like a guilty man walks free because the police screwed up. And in this case, the guilty man is a killer. Which is why Akers’ case is a great one for making the exclusionary rule even less popular, because, who bears the burden of the Fourth Amendment violation? When a killer is allowed to walk free because the police violated the Fourth Amendment, do the police bear the cost of their violation or does the society at large bear it – the society in which the killer roams free, the very society that the Fourth Amendment is meant to protect from police overreach?

Now we can see that the exclusionary rule’s direct benefit runs almost exclusively to those who have committed a crime; that the rule has almost no value in preventing police from conducting illegal searches and seizures if they lack the grounds to conduct them lawfully; that when police conduct illegal searches and seizures against the innocent, those events go unnoticed because there is nothing to suppress and because those people will virtually never sue the police; and that, when the exclusionary rule is applied, especially in cases involving the release of violent criminals the greater part of the burden is borne directly by the society that the Fourth Amendment is intended to protect, not by the officers who violated the Fourth Amendment.

Add this: Given the numerous exceptions to the requirement of a search warrant, of probable cause, of reasonable, articulable suspicion, and the exceptions to the exclusionary rule’s application, police who want to go fishing stand a pretty decent chance that post hoc rationalization will save any evidence they gather from suppression. So why not go for it? Consider searches for drugs, for instance. In drug cases, every illegal search and seizure that turns up drugs takes those drugs off the street. Even if the judge can’t find a rationale to uphold the search that led to the seizure of the 5 pounds of fentanyl, the fentanyl remains out of circulation and therefore not killing people, even as the defendant/trafficker goes free because the evidence is suppressed.

But how many innocent people will be subjected to Fourth Amendment violations by police conducting unlawful fishing expeditions? Many.

Still, we have the exclusionary rule because the U.S. Supreme Court imposed it on the States in Mapp v. Ohio. And the Supreme Court imposed it because it saw flagrant Fourth Amendment violations committed throughout the U.S. under color of state laws, with nothing being done about it by the states where the violations were occurring. So, the Supreme Court did something about it. And what they did reflects the limited tools that the Supreme Court has to work with. It might be the best the Supreme Court could do to address the problem, but that doesn’t mean it was the best, or even close to the best, that anyone can do to address it.

How about addressing the problem of Fourth Amendment violations legislatively? How about directly addressing the incentives involved, placing the burden of a violation squarely on the police who commit it and thereby more effectively deterring police from committing Fourth Amendment violations?  How about better protecting the innocent against Fourth Amendment violations and thereby avoiding situations where the exclusionary rule ends up being applied and a murderer is returned to society because the cops violated the Fourth Amendment?

To do this would require setting up a system to effectively police the police, to directly punish officers who commit a Fourth Amendment violation. You don’t effectively deter theft by taking away the thief’s ill-gotten gains and calling it good, and you don’t deter Fourth Amendment violations by simply telling cops they can’t use their illegally-gathered evidence when you occasionally happen to catch them gathering it illegally. Effective deterrence requires the threat of significant personal penalty for a violation of the law.

How might it be done?  Several years ago, I thought and wrote about that, here, while considering what might be done if the Supreme Court were ever to overrule Mapp v. Ohio (which might happen someday). How about having some of the great minds out there give it a bit more thought?

If we were to go overboard punishing police for innocent Fourth Amendment violations we would scare even more people away from police work, and that would not be good. The balance is a delicate one.  And, of course, if we actually were to deter police from conducting fishing expeditions for drugs (for instance), they would conduct fewer illegal searches that turn up drugs, which means more illegal drugs would remain on the streets. It’s very possible that lots of people really don’t want that to happen, so wink, wink. But unless we make the penalties for Fourth Amendment violations fall on the violators, personally, every once in a great while we can expect to see cops, immersed in a culture where skating the edge and crossing the line produces benefits under the prevailing system of perverse incentives, screw things up enough that a murderer walks free because they committed the wrong Fourth Amendment violation.

What penalty are the cops who screwed up the Akers search bearing? Shouldn’t they at least, and not the judge who WGME has libeled, publicly take the blame?