I wanted to comment on the article on your other site, titled “DEA’s Special Operations Divison”. Sorry if it is slightly off topic, but there is no comment box over there, so I came here.
The 4th amendment protects against unreasonable searches and seizures. The exclusion principle is intended to remove the motivation to violate this right. The fact that illegal searches is not admissible in court is no longer relevant since there is now another motivation to do it, ie. “parallel construction”. In other words, you just successfully argued that the exclusion principle is ineffective as a deterrent to 4th amendment violations. Rather than “tone it down”, it was a great explanation on why we should “freak out” even more.
Let me say it in another way. An unreasonable search or seizure violates your 4th amendment rights, regardless of whether the evidence gathered can be used for anything.
I’m fairly sure he’d disagree with your claim that “The exclusion principle is intended to remove the motivation to violate this right” or that it is intended as (or has) a deterrent value. See http://lawcomic.net/guide/?p=1588 and the following two pages.
Thanks for pointing that out. However, in the comic itself, he mentioned that “most law books” and “most supreme court justices” agree with me.
While it is true the police “still gets credit for the arrest” for specific cases, if cases get thrown out often enough due to the exclusionary rule, it will eventually get political publicity. Think of the backlash when the newspaper headlines read, “1000 criminals still loose on the streets because police is messing up the evidence”. When that happens, the rule about getting credit will change pretty fast.
He also makes a pretty good argument for why most law books and supreme court justices are wrong on this one. :P
Also, as pointed out, the vast majority of cases plea out before trial, so it rarely comes up anyways.
Finally, the exclusionary rule doesn’t mean that the case is thrown out, just that the illegally-gathered evidence is suppressed. Not all evidence, just the evidence that was illegal to find. So even if it were to be successfully invoked as often as you imagine, that doesn’t mean that every single one of those cases is going to result in someone going free. Many of them will still have enough evidence and testimony for the state to make their case.
What keeps the scenario you describe (with the newspapers etc.) from having already happened? Why should it happen NOW of all times? What’s different all of a sudden?
Exactly. It’s a common misconception that when evidence is thrown out like that, the criminal automatically gets a walk. While it can happen if that’s the only evidence against them (which did happen earlier in the chapter), in most cases there’s a lot more they can still use to try and get a conviction.
“Also, as pointed out, the vast majority of cases plea out before trial, so it rarely comes up anyways.”
So… Do YOU have several thousand dollars lying around JUST IN CASE someone accuses you of something?
Can you afford to NOT be at work?
And do you realize that each plea-deal becomes case law?
Why do you think the “deal” I so important? No one can AFFORD to go to trial if there’s a cheaper* way to go. “Cheaper” includes cost-deferred, such as in DUI/Insurance ass-rape. You can often get an avoidance program, but your insurance goes up immensely. (You need not be drunk, nor even legally intoxicated, with the draconian laws we have. Just refuse to blow. It’s considered admission of guilt even if you’re stone-cold sober. In addition, people who have BLOWN CLEAN have been CONVICTED OF DUI – so what the F*CK is the purpose? MONEY, and MONEY ALONE. Keeping the populace cowed to the myth of authority.
It’s coming to the point where dead cops will be a good thing. How bad are things, when THAT is a “good thing?” (It means we no longer HAVE a society.)
If there are no repercussions to them, then why do the cops even bother to do a search legally? As already pointed out elsewhere, sometimes it can be a painful process (eg. wiretaps). Unless you are arguing that none of the evidence from searches are critical to getting a conviction, then why bother doing them in the first place?
I would imagine that if a particular cop is in the habit of making illegal searches and having evidence get thrown out as a result, the prosecutor’s office would have a talk with the police chief about it. There may not be any legally mandated thing saying “This cop must be arrested and thrown into jail etc”, but that doesn’t mean they would face no consequences.
Exactly! That’s what turns the exclusionary rule into deterrence, isn’t it?
That’s not legally mandated, though. The law doesn’t require that a cop who keeps making bad searches be fired. If the cop is making bad searches because he’s doing something else illegal, he could certainly be risking criminal charges for that. But just making bad searches, in and of itself? There’s no penalty under the law for it.
Remember, right now we’re just talking about the legal purpose of the exclusionary rule. One thing I’d like to note is that the exclusionary rule protects you even if the cop made an honest mistake. Deterrence is only really effective against people who intended to do the forbidden act (or just didn’t care if they did) and doesn’t help against people who make mistakes.
Actually, the officer as an indivudual or the department can be charged with or sued for civil rights violations, and that can be used as cause to get an injunction barring the officer in question from *any* searches and seizures, effectively relegating him to a desk job or causing her dismissal.
Most bad searches don’t result in civil rights lawsuits. And even when one is filed, it’s rarely the officer who winds up paying — it’s usually the city’s taxpayers who pays (in fact, taxpayers often pay not just the settlement or judgment, but also the city’s contribution to the police union’s defense fund). It is vanishingly rare for an officer to be enjoined against further s/s activity, and even more rare for an officer to lose pay, much less his job.
The odds of direct personal consequences are minimal, and so I’d question their deterrent effect.
Officers follow the Fourth Amendment when conducting searches because them’s the rules, and they’d like to be able to use the evidence. A few may even do so because they believe it’s the right thing to do. Few, however, do so because of what may happen to them personally if they don’t.
Come on Nathan, don’t be like one of these nutjob commenters. I might as well say All lawyers get their clients off, even when they’re clearly guilty, because they know the suspect is just going to commit more crimes and ensure they have a steady job in the future.
And you touched on it already – if cops, who already only make $30k a year (at least in the south) had to risk losing their house, car, and everything else in the course of their job, they’re simply going to sit in the department’s parking lot for the whole shift. You might be surprised at how many officers face desk time or suspension (without pay) for department policy violations. Losing 3 days pay (say 36 hours in an 84 hour 2 week period) hurts a paycheck…but that’s something lawyers and most regular people don’t think about.
I’ve been surfing on-line more than three hours as of late, but I by no means discovered any
attention-grabbing article like yours. It’s pretty value enough for me.
In my view, if all webmasters and bloggers made good
content material as you did, the web will be much more helpful than ever
thought i’d bring this up….. there’s a video floating around of some young adult male challenging a checkpoint (to some extent) by complying with the officers requests but to the minimal amount allowed to him by law (only partially opening his window, asking if he is being detained etc.)
some interesting stuff.. the police basically telling him his rights don’t apply at checkpoints, bringing out a K9 unit, having the dog fake a ‘hit’ on the car, searching the car, etc.
Have a link to said video? Because if he is doing anything to prevent the cops from getting him through as quickly as possible I think that would give them probable cause for the search.
OK, out of left field here. If it has to do with vehicle and road safety, why can Idaho set up random fish and game stops that operate just like DWI stops? Doesn’t that not work?
Thin end of the wedge. If some checkpoints are considered acceptable, that lowers resistance to the adoption of other kinds of checkpoints.
(Panel 4): Didn’t we just see in the last case that the cops can basically stop anyone they want?
Could the gov’mint require ignition breathalyzers for all cars? Seems like they have broad leeway to impose safety features, like seatbelts, but I presume there’s some legal principle stopping them or they’d have done it already.
That would border on presumption of guilt.
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