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American Exception

U.S. Is Alone in Rejecting All Evidence if Police Err

From left,

Dollree Mapp, left, was the defendant in a Supreme Court case that concluded that only the suppression of evidence can address wrongdoing by the police. The justices will hear arguments on Oct. 7 about whether methamphetamines and a gun belonging to Bennie Dean Herring, center, should be suppressed because of a mistake by the officers who conducted the search. Booker Hudson, right, was at the center of an earlier Supreme Court decision in which Justice Antonin Scalia seemed to say that the exclusionary rule had outlived its original purpose.

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Published: July 19, 2008
Bradley Harrison was driving a rented Dodge Durango from Vancouver to Toronto in the fall of 2004 with 77 pounds of cocaine in the trunk when a police officer pulled him over, found the drugs and arrested him.

American Exception

Suppressing the Evidence

This series of articles examines commonplace aspects of the American justice system that are actually unique in the world.

A year and a half later, an Ontario trial judge ruled that the officer’s conduct was a “brazen and flagrant” violation of Mr. Harrison’s rights. The officer’s explanation for stopping and searching Mr. Harrison — confusion about a license plate — was contrived and defied credibility, the judge said, and the search “was certainly not reasonable.”

In the United States, that would have been good news for Mr. Harrison. Under the American legal system’s exclusionary rule, the evidence against Mr. Harrison would have been suppressed as the result of an unlawful search.

But both the Canadian trial judge and an appeals court refused to exclude the evidence. Mr. Harrison was sentenced to five years in prison.

“Without minimizing the seriousness of the police officer’s conduct or in any way condoning it,” the Court of Appeal for Ontario ruled in Mr. Harrison’s case in February, “the exclusion of 77 pounds of cocaine, with a street value of several millions of dollars and the potential to cause serious grief and misery to many, would bring the administration of justice into greater disrepute than would its admission.” The case is now before the Canadian Supreme Court.

The United States is the only country to take the position that some police misconduct must automatically result in the suppression of physical evidence. The rule applies whether the misconduct is slight or serious, and without regard to the gravity of the crime or the power of the evidence.

“Foreign countries have flatly rejected our approach,” said Craig M. Bradley, an expert in comparative criminal law at Indiana University. “In every other country, it’s up to the trial judge to decide whether police misconduct has risen to the level of requiring the exclusion of evidence.”

But there are signs that some justices on the United States Supreme Court may be ready to reconsider the American version of the exclusionary rule. Writing for the majority two years ago, Justice Antonin Scalia said that at least some unconstitutional conduct ought not require “resort to the massive remedy of suppressing evidence of guilt.”

The court will soon have an opportunity to clarify matters. The justices will hear arguments on Oct. 7 about whether methamphetamines and a gun belonging to Bennie Dean Herring, of Brundidge, Ala., should be suppressed because the officers who conducted the search mistakenly believed he was subject to an outstanding arrest warrant as a result of careless record-keeping by another police department.

Elsewhere in the world, courts have rejected what the Ontario appeals court in Mr. Harrison’s case called “the automatic exclusionary rule familiar to American Bill of Rights jurisprudence.”

Australia also uses a balancing test. It considers the seriousness of the police misconduct, whether superiors approved or tolerated it, the gravity of the crime and the power of the evidence. “Any unfairness to the particular accused” in most cases, the High Court of Australia wrote in 1995, “will be of no more than peripheral importance.”

The European Court of Human Rights, a notably liberal institution, refused in 2000 to require the suppression of illegally obtained evidence. Using such evidence to convict a man charged with importing heroin into England, the court said, did not make his trial unfair.

In the United States, by contrast, evidence against criminal defendants is routinely and automatically suppressed when police misconduct is found. In the last week of June, for instance, courts in Georgia, Ohio, Pennsylvania, Virginia and Washington state suppressed evidence in cases involving drugs, guns, burglary and child pornography under the mandatory version of the exclusionary rule.

Some specialists in comparative criminal law say that the decentralized nature of American law enforcement, with thousands of local police departments around the nation, requires a more rigorous and consistent approach to deterring misconduct. The law enforcement systems in Canada and England, by contrast, are notably less fragmented and may be subject to more stringent professional discipline.

But not always. The officer who pulled over Mr. Harrison’s car in Ontario thought the car should have had a front license plate, even though the car was from Alberta, which does not require one. “We respect the decision of the courts,” said Sgt. Pierre Chamberland, a spokesman for the Ontario Provincial Police, but “their criticism alone does not by default lead to an internal complaint.”

Supporters of the American practice say that only strict application of the exclusionary rule can effectively address violations of the Fourth Amendment, which bans unreasonable searches and seizures.

“The exclusionary rule deters police misconduct in a straightforward and effective way,” said a supporting brief filed by the National Association of Criminal Defense Lawyers in the case the Supreme Court will hear in October. “It reduces the value of evidence obtained as a result of Fourth Amendment violations, and thus eliminates what would otherwise be a powerful incentive for police to engage in such violations.”

Several justices have in recent years questioned whether the rule still makes sense in light of what they called the increased professionalism of the police and the availability of alternative and arguably more direct ways to punish misconduct, including internal discipline and civil suits.

Opponents of the rule say it is indirect, incomplete and in a way perverse. Even if it deters unlawful searches, exclusion of evidence, for instance, offers no remedy to innocent people whose rights were violated by unlawful searches.

More important, as Justice Robert H. Jackson wrote in 1954, the exclusionary rule “deprives society of its remedy against one lawbreaker because he has been pursued by another.” Or, in Judge Benjamin Cardozo’s famous mocking formulation in a 1926 decision for New York’s highest court rejecting the rule: “The criminal is to go free because the constable has blundered.”

That reasoning continues to resonate with some experts.

“Lots of scholars argue that the mandatory exclusionary rule ought to be re-examined,” said David A. Sklansky, a law professor at the University of California, Berkeley. “Those scholars are not all on the right of the political spectrum.” Professor Sklansky said he believed that the rule’s benefits continued to outweigh its costs.

Most specialists continue to support the rule, said Orin S. Kerr, a law professor at George Washington University. “The U.S. experience is a consequence of history,” Professor Kerr said. “It’s a response to the police not following the law in the absence of this remedy.”

The idea that exclusion is the proper response to police misconduct is of relatively recent vintage.

“Supporters of the exclusionary rule cannot point to a single major statement from the Founding — or even the antebellum or Reconstruction eras — supporting Fourth Amendment exclusion of evidence in a criminal trial,” Akhil Reed Amar, a law professor at Yale, wrote in The Harvard Law Review in 1994.

According to Professor Amar, the framers of the Fourth Amendment assumed that the right it guaranteed would be enforced through civil lawsuits, not exclusion. “Both before and after the Revolution,” he wrote, “the civil trespass action tried to a jury flourished as the obvious remedy against haughty customs officers, tax collectors, constables, marshals and the like.”

These days, law professors and defense lawyers say, civil suits are less likely to be effective. Criminals whose rights have been violated are not attractive plaintiffs, and they may not have the resources to litigate, particularly from behind bars. Civil suits must, moreover, overcome various legal doctrines limiting the liability of police officers and their employers.

The Supreme Court started requiring the exclusion of improperly obtained evidence in 1914 — but only in federal cases.

For many decades afterward, the Supreme Court refused to apply the principle to states, saying they could choose the appropriate remedy for police misconduct — including civil suits and criminal prosecutions — and were not required to suppress evidence. In a 1949 decision, the court justified that position in part with a rationale now disfavored in some circles: a survey of foreign law.

“Of 10 jurisdictions within the United Kingdom and the British commonwealth of nations,” Justice Felix Frankfurter wrote for the majority, “none has held evidence obtained by illegal search and seizure inadmissible.” The right to be free of arbitrary police intrusion is fundamental, Justice Frankfurter wrote, but the legal remedy for the violation of that right can vary.

It was not until 1961 that the Warren Court, in one of its signature decisions, concluded in Mapp v. Ohio that only the mandatory suppression of evidence could adequately address wrongdoing by the police in all cases, state and federal.

Seven Cleveland police officers had broken into and searched Dollree Mapp’s home without producing a warrant, manhandling her and rummaging through her personal papers. Though the Ohio Supreme Court concluded that the search had been unlawful, it affirmed Ms. Mapp’s conviction on obscenity charges based on materials the police found in her home.

That was too much for a majority of the Supreme Court to stomach. “The state, by admitting evidence unlawfully seized, serves to encourage disobedience to the federal Constitution which it is bound to uphold,” Justice Tom C. Clark wrote for the court. Only the exclusion of evidence could do the job, he said; other remedies had proved “worthless and futile.”

The Supreme Court has in recent years whittled away at the exclusionary rule by limiting its applicability and creating exceptions to it. Chief Justice John G. Roberts Jr. and Justice Scalia, neither of whom is enamored with citing foreign law, each noted in recent decisions that the American approach in this area is unique and has been universally rejected elsewhere.

In a third decision two years ago, Hudson v. Michigan, Justice Scalia seemed to say that the exclusionary rule had outlived its original purpose. The case involved a conceded violation of a rule requiring police executing a search warrant to knock and announce themselves.

Much had changed since the exclusionary rule was applied to states in 1961, Justice Scalia wrote. Police departments had become more professional, he said, and various kinds of civil suits against officials and the government had become available. “As far as we know,” Justice Scalia wrote for the court, “civil liability is an effective deterrent.”

Justice Stephen G. Breyer, writing for the four dissenters, said that exclusion remains the best and most reliable deterrent. He added that the logic of the majority’s objections was not limited to “knock and announce” violations but was “an argument against the Fourth Amendment’s exclusionary principle itself.”

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