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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Saturday, January 31, 2009

Exclusionary Rule Under Attack

A few posts back, I noted that the Supreme Court's ruling in Herring v. U.S., involving the exclusionary rule and computer records, should be of special concern on the anniversary of Roe v. Wade, both a threat to privacy rights. Consider an earlier case, Georgia v. Randolph,* involving the inability of one spouse to consent to entry of a dwelling when the other protests. A ruling that would probably have been a bare 5-4 ruling if Alito was involved. It explained at one point (cites etc. removed) why the opinion went the way it did:
Since we hold to the centuries-old principle of respect for the privacy of the home, it is beyond dispute that the home is entitled to special protection as the center of the private lives of our people.

The legal reporter over at the NYT, Adam Liptak, uses Herring to note the growing move by the current Supreme Court to do away with the exclusionary rule. It also suggested why people like me were against Roberts and Alito, the latter not showing up when Obama/Biden came to the Court, perhaps because they didn't vote for him. The article suggests why they did not:
Justice Samuel A. Alito Jr. joined the Herring decision and has been a reliable vote for narrowing the protections afforded criminal defendants since he joined the court in 2006. In applying for a job in the Reagan Justice Department in 1985, he wrote that his interest in the law had been “motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure,” religious freedom and voting rights.

As I did, with additional evidence, the article also notes how Justice O'Connor would likely have voted differently on this specific matter. A ruling that already has had effects, as a recent lower court ruling showed:
The agent had told the judge that DVDs found during an earlier search contained child pornography.

This was false: other law enforcement officials had reviewed the DVDs and had found no child pornography. The agent, who was leading the investigation, testified that he did not know of that review when he made his statement.

He had not reason to lie, right? Or, fudge the matter. The article, however, does a disservice by not dealing with all the exceptions allowed over time in this area. Thus, we get this bald statement without much (if any) context:
The United States takes a distinctive approach to the exclusionary rule, requiring automatic suppression of physical evidence in some kinds of cases. That means, in theory at least, that relatively minor police misconduct can result in the suppression of conclusive evidence of terrible crimes.

No wonder John Roberts some time back ...
In 1983, a young lawyer in the Reagan White House was hard at work on what he called in a memorandum “the campaign to amend or abolish the exclusionary rule” — the principle that evidence obtained by police misconduct cannot be used against a defendant.

Of course, things aren't that simple. It might be useful to know what "some kinds of cases" means or "relatively minor police conduct" or what happens generally. We are left to reading the (.pdf) file/article provided via link by the losing part in a "no knock" case, which notes things such as:
In his recent comprehensive report on the rise of paramilitary policing in the United States, Radley Balko described seventy-two cases since 1995 in which police officers subjected completely innocent people to terrifying and humiliating paramilitary-style raids only to discover that they had raided the wrong residence. ...

Finally, even if the police do have the right address and the contraband or evidence is present, there is a very good chance that innocent people, such as children or elderly relatives, will be present. Indeed, the Court has long recognized that the police may execute search warrants on premises owned and occupied by people who are not suspected of wrongdoing at all, so long as there is reason to believe that contraband or evidence of crime will be found there.

Again, a fairly conservative former prosecutor in Mapp v. Ohio noted that without the exclusionary rule, the privacy secured by the Fourth Amendment would be "valueless and undeserving of mention" and so forth. Anyway, I appreciate the NYT article, which provides an informative look into the Supreme Court, how things have changed in recent years, and the importance of Obama's nominations.

It is not atypical either -- Liptak often has interesting stuff and does the tradition of Linda Greenhouse, now in academia, proud.


* The ultimate ruling was narrow because police could still get such material in many cases anyway and even at home domestic violence cases might be different, but it remains important for its underlining principles. This includes "widely shared social expectations" that includes the equal roles of each member of the marriage as noted by Stevens' concurrence. If we ignore such things in the promotion of some governmental interest, it might be much easier in any given case to trump privacy rights. IOW, underling assumptions can be key here.