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“It appears…Maine is willing to hold no one accountable for this.”

“It appears…Maine is willing to hold no one accountable for this.”

Posted By Ed Folsom, October 5, 2022.

I discussed State of Maine v. Bruce Akers a couple of posts ago. Akers was convicted of murder, but the State later dismissed his indictment after Maine’s Law Court threw out all the evidence against him and set aside his conviction on appeal. As discussed in that previous blog post, the Law Court applied the so-called exclusionary rule, which requires courts to exclude from trial all evidence that is the unattenuated “fruit” of a search or seizure that violates the 4th Amendment to the U.S. Constitution.

In an October 2, 2022, story about the case in the Maine Sunday Telegram, Walter Flint, brother of Akers’ victim, Douglas Flint, is quoted as saying, “It appears that the State of Maine is willing to hold no one accountable for this.” Well, no one has been held to account for it so far, and in a very real way that demonstrates the limited effectiveness of the exclusionary rule.

The Law Court had this to say about why it applied the exclusionary rule in Akers’ case:

“If the officers’ conduct in conducting nonconsensual investigatory searches of Akers’s curtilage and camper without probable cause after midnight and insisting on Akers coming out of his residence to be interviewed was not flagrant, it was undoubtedly purposeful and it cannot be excused, and the deterrence benefits outweigh the costs of suppression.”

But do the deterrence benefits of evidence suppression really outweigh the cost here?*  Recall from my previous blog post that the U.S. Supreme Court has declared that the exclusionary rule’s sole purpose is to deter police from committing future 4th Amendment violations. The cost of applying the exclusionary rule in Akers is to let a convicted murderer go free. To outweigh that, the deterrence value of excluding the evidence would need to be really high, wouldn’t it?

The exclusionary rule is based on the assumption that excluding evidence will cause police in similar circumstances to choose a different, constitutionally sufficient, way of gathering their evidence the next time. But will exclusion of the evidence in Akers’ case actually cause that to happen?

Before it can happen, police authorities must either: (1) acknowledge the misconduct and insist that officers in similar circumstances need to conduct themselves within 4th Amendment strictures in the future (which will likely require training as to how that is to be done); or (2) at least take the position that although the police didn’t really do anything wrong, police in the future must nevertheless conduct themselves within the limits that the Law Court has mistakenly declared to be imposed by the 4th Amendment (which will also require training as to how that is to be done).

But what if the police response to the Akers case is instead that the police didn’t do anything wrong and couldn’t have done their jobs properly if they had conducted themselves any differently? Won’t that mean the police will continue to act the way they consider to be necessary, and maybe try to just do a better job convincing the courts to let their evidence in the next time?

Recall that there are a number of exceptions to the requirement of a search warrant. If a court is convinced that one of them applies, the search or seizure at issue will not be declared “unreasonable” under the 4th Amendment. And even if the search is “unreasonable” and therefore in violation of the 4th Amendment, the Supreme Court has declared that in certain circumstances the exclusionary rule is not to be applied anyway, under the theory that its deterrent effect would be too marginal to warrant the costs of exclusion.

Certainly, an officer should be well-enough trained to articulate the specific facts that formed the grounds for probable cause or exigent circumstances, or that otherwise excuse the officer from needing a search warrant. Without that much training, there’s a chance that a court might suppress evidence not because the search or seizure violated the 4th Amendment but merely because the officer failed to provide adequate information to demonstrate that the officer complied with 4th Amendment strictures.

On the other hand, it isn’t good when unscrupulous, corner-cutting officers (and we know they exist) know enough to convince a court, through embellishment and back-filling, that their actions fell within a search warrant exception, even when they in fact did not.

This brings me back to whether the deterrent effect of exclusion actually does outweigh the cost of setting convicted murderer Bruce Akers free, or whether, instead, the police response to the Akers case tells us that application of the exclusionary rule there is all cost, no benefit.

According to an August 29 story in the Portland Press Herald, the reporter asked York County Sheriff Bill King to comment on the misconduct that the Law Court identified in his deputies’ handling of Akers’ case investigation. King’s response, by text message, was: “I think your inquiry is best directed to the court.” But he’s the sheriff in charge!

According to a story in the October 2, 2022 Maine Sunday Telegram, Sue Flint, the daughter of Akers’ victim, Douglas Flint, received a call from Sheriff King the day the State dismissed Akers’ indictment. Flint told the Sunday telegram that King apologized to her for the outcome of the case but insisted that his deputies had done nothing wrong.

King also provided the following statement to the Sunday Telegram, as reported in the October 2 story:

“The courts sometimes have the benefit of time whereas law enforcement officers must make split second decisions. All we can do in the future is to be sensitive to (the) court’s perspective on these issues while we still do our best to find a missing person. The bottom line is that I stand firmly behind these deputies and the entire Sheriff’s Office and am proud of the way they serve the public.”

Does King think that his officers did anything unconstitutional during their investigation or not? Will he at least insist that his officers must act in accordance with the Law Court’s pronouncements, regardless whether he thinks his deputies did anything wrong or not? Or will he treat the Law Court’s pronouncements as reflecting an aloof perspective, formed with the luxury of hindsight – something that police must somehow merely be “sensitive to”– rather than as authoritative declarations of the constitutional strictures that bind police as they carry out their duties? If it’s the latter, have King and his York County Sheriff’s Department gone rogue, or might King’s view reflect that of Maine law enforcement more generally?

The Sunday Telegram reports that King sent his patrol deputies to a day of 4th Amendment training in the wake of the Law Court’s Akers ruling. The police training agency, Dirigo Safety, provided the training. The Sunday Telegram contacted Scot Mattox, lawyer, former Portland Police sergeant and the CEO of Dirigo Safety. Mattox told the Sunday Telegram that Akers’ conviction would not have been overturned if the officers had documented their intentions and reasoning more clearly. He added the following:

“We don’t agree that the cops purposefully did it wrong. If these very educated lawyers can have these vast disagreements about what’s reasonable and what’s constitutional, how do we expect cops in the middle of the night, searching for somebody that’s injured, who have only two or three weeks of training from the police academy – how do they expect cops to make this kind of constitutional analysis in the middle of the night.”

It appears that Mattox takes issue with the Law Court’s assessment that the police committed misconduct that, if not flagrant, “was undoubtedly purposeful and…cannot be excused.” Mattox replied in a similar way to a comment on my September 1, Linkedin post on the matter. There, he said that the way to address any problems is:

“to provide law enforcement with enhanced legal training and education so they have the tools needed when necessary. Likewise, a better understanding of the decision making procedures of cops during circumstances like this would help lessen these sort of misunderstandings.”

I have a great deal of respect for Scott Mattox. He had a distinguished career with Portland PD, and during the 20+ years I have known him he has always demonstrated the highest degree of professional integrity. He is no doubt correct that police can benefit from additional 4h Amendment training. But can it possibly be true that the police did nothing wrong in Akers other than fail to document their intentions and reasoning more clearly?

What would the Law Court need to better understand, about the decision-making process of police in such circumstances, to convince them that they were wrong in Akers, not only because the police did not commit any purposeful misconduct but because the police didn’t do anything unconstitutional at all? One thing I’m fairly sure of is that the Law Court, and the U.S. Supreme Court, don’t expect front-line police officers to conduct hair-splitting constitutional analyses in the middle of the night. Instead, they expect the police, when in doubt, to seek a search warrant.

If there’s clear and binding case law holding that what the police would like to do without a search warrant clearly falls within a clear exception to the requirement of a search warrant, then the Law Court and the U.S. Supreme Court kind of expect the police to have the training required to know about it. But if there is no such clear and binding precedent, that means the police would be left in some doubt on the matter, which means they would default to the requirement of a search warrant. Because, as much of a pain-in- the-butt as the 4th Amendment is to police trying to do their jobs in the middle of the night, the 4th Amendment’s strictures are binding as a matter of constitutionality.

There is never any hair-splitting legal analysis to be done by police when they seek a search warrant –they just set out the facts and let a magistrate do the (legal) probable cause analysis. Instead, it’s when the police attempt to gather evidence without a search warrant that we end up with highly-trained lawyers splitting constitutional hairs after the fact, battling over the State’s attempt to salvage evidence from what the police did without a warrant.

All of this brings me back to why the exclusionary rule does such a poor job of what it is meant to do, and why it’s such a bad idea to rely on it as the main or exclusive means of protecting against 4th Amendment violations.

The 4th Amendment is intended to protect, precisely, against police overreach.  But what if the police think that a court, when it applies the exclusionary rule is, to put things in the vernacular, full of crap? What if the police think that what the court says the police did wrong wasn’t wrong at all, but that it was the only thing the police could have done in properly performing their job? What if the police decide they have no real choice but to do things the same way the next time; that maybe they just need to write a better police report (one that maybe demonstrates more “sensitivity” to the “concerns” of ivory tower courts that operate with the benefit of hindsight and don’t understand the difficulties of the constitutional analyses police are forced to perform on the spot, in the middle of the night) hoping to have a better shot next time at getting the court to bite on a search warrant exception that legitimates their conduct? I only ask because it’s distinctly possible that this is the situation we face.

In Akers, the Law Court did all that it could to address the 4th Amendment violations, by applying the exclusionary rule as required by U.S. Supreme Court precedent. But what did it accomplish? If the police are convinced that they did nothing wrong, that the real problem lies with a court that just doesn’t understand the pressures on police, how likely is it that they’ll to try to fix what they think isn’t broken — what they maintain can’t be fixed because there’s no other available choice?

Things would be different if police faced meaningful personal consequences for violating what courts declare to be 4th Amendment protections. Then it wouldn’t matter as much whether they think the courts making those declarations are full of crap — Monday morning quarterbacks with the luxury of hindsight who don’t understand the difficulties of police work — or not. But when the burden of unconstitutional police misconduct doesn’t fall on the police, when it falls solely only society itself and the police point the finger back at the courts as the reason that the burden is imposed on society, the exclusionary rule is all-cost, no-benefit.

When the U.S. Supreme Court decided to impose the exclusionary rule on the states under the 14th Amendment, it might have expected that the public reaction to seeing criminals set free because the police violated the 4th Amendment would be to insist on meaningful action to prevent the police from doing it again — maybe more police training, maybe the police who committed the violation need to be disciplined or fired, maybe the sheriff who supervises them needs to be voted out of office — but something would get done. But if the public doesn’t demand remedial action when a murderer is set free because of 4th Amendment violations, and if the cops think they are right and the court is full of crap, 4th Amendment protections are in serious trouble.

A murderer walks because the court says the police purposefully violated the 4th Amendment. The police maintain that they did nothing wrong and seek out ways to better explain their actions when they do the same thing in the future. This is an impasse that makes the exclusionary rule all-cost, no-benefit; that renders 4th Amendment protections toothless.

If we are going to do anything meaningful about it, we need to devise a system that provides strong personal disincentives for police to avoid violating the 4th Amendment. We have no such system presently, and as a result, a convicted murderer has been set free and no one has been held to account – no one.



*In my understanding, it really isn’t up to Maine’s Law Court to decide whether the costs of exclusion outweigh the benefits in this particular case. The U.S. Supreme Court engages in a cost/benefit analysis in creating categorical exceptions to application of the exclusionary rule. But if a search or seizure violates the 4th Amendment, Supreme Court precedent requires that the unattenuated fruits must be suppressed unless the 4th amendment violation is of a type that Supreme Court precedent categorically excepts from the requirement of exclusion. Individual courts are not invited to engage in a cost/benefit analysis to determine whether the exclusionary rule nevertheless should not apply in the individual case, any more than they are invited to engage in an independent analysis of what is a “reasonable” 4th Amendment search or seizure in each individual case by use of the balancing test that the Supreme Court has already used to make a binding categorical determination of the issue.