Exclusionary Rule Under Attack

The principles underlying the exclusionary rule, a judicially created remedy, Weeks v. United States, 232 U. S. 383, 398 (1914), extended to the states by a decision of the Warren Court, Mapp v. Ohio, is under attack. Up until now, evidence obtained illegally by the police, by exploiting a violation a criminal suspect's constitutional rights, was excluded from evidence at his trial. A five member majority of the Justices of the U.S. Supreme Court, in the case of Herring v. United States, decided January 14, 2009, established for the first time that unlawful police misconduct should not require the suppression of evidence if all that was involved was isolated carelessness. Herring was found in possession of drugs and a firearm, in a search incident to arrest, after his arrest on a warrant that turned out to have been recalled months earlier. The police relied in good faith, United States v. Leon, 468 U. S. 897 (1984), on the warrant's validity since it was in the computer database. Chief Justice Roberts, writing for the five member majority in Herring, wrote that "[t]o trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system," and that price "is, of course, letting guilty and possibly dangerous defendants go free." "As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence." Herring will require a criminal defendant to prove not only that his constitutional rights were violated by the police and that evidence was obtained as a result of the unlawful police misconduct, but the defendant will now have the additional task of establishing that the police conduct was part of a pattern, due to systemic error, or was reckless or intentional, and not merely the result of negligence, poor training, or poor judgment. "The pertinent analysis of deterrence and culpability is objective, not an inquiry into the subjective awareness of arresting officers." In addition, if a criminal defendant can prove all this, there is one more hurdle -- to convince the trial judge that, on balance, excluding the evidence is worth the "price" of allowing the guilty to go free. Thus, the extent to which the exclusionary rule is justified by its deterrent effect varies with the degree of law enforcement culpability. The decision can be read narrowly or broadly, and for some trial judges, this balancing test, one can imagine, will rarely require the suppression of evidence. The more heinous the crime, the more counterweight must be piled upon the defendant's side of the scale for evidence to be suppressed. This decision may be a harbinger of the abolition of the exclusionary rule that protects our client's constitutional rights. As the dissent reminded us, the exclusionary rule is based on principles -- "Beyond doubt, a main objective of the rule is to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.” The decision may be read here.