16 January 2011

Problems and limitations to the exclusionary rule

Consider the following situation:
A police officer notices a car driving 43 MPH in a 25 MPH zone.  He stops the car and tickets the driver.  He then searches the car, and finds a bag of marijuana and a "pot pipe" underneath the driver's seat.  The driver is arrested and charged with possession of a controlled substance.
Now consider a similar situation:
The same officer returns on his shift and soon again, notices yet another car driving 43 MPH in a 25 MPH zone.  He stops the car and tickets the driver.  He then searches the car, but does not find any additional evidence.  The police officer sends the driver on his way.
Now, what is the difference?  We'll answer that eventually, but let's first look at the results of each situation.  The first situation actually occurred, and was the subject of a Supreme Court case called Knowles v. Iowa.  The Court found that:
[t]he search at issue, authorized as it was by state law, nonetheless violates the Fourth Amendment. Neither of the two historical exceptions for the "search incident to arrest" exception, see Robinson, supra, at 234, is sufficient to justify the search in the present case. First, the threat to officer safety from issuing a traffic citation is a good deal less than in the case of a custodial arrest. While concern for safety during a routine traffic stop may justify the "minimal" additional intrusion of ordering a driver and passengers out of the car, it does not by itself justify the often considerably greater intrusion attending a full field-type search. Even without the search authority Iowa urges, officers have other, independent bases to search for weapons and protect themselves from danger. Second, the need to discover and preserve evidence does not exist in a traffic stop, for once Knowles was stopped for speeding and issued a citation, all evidence necessary to prosecute that offense had been obtained. Iowa's argument that a "search incident to citation" is justified because a suspect may try to hide evidence of his identity or of other crimes is unpersuasive. An officer may arrest a driver if he is not satisfied with the identification furnished, and the possibility that an officer would stumble onto evidence of an unrelated offense seems remote. Pp. 3-6.
The Supreme Court reversed the decision of the Iowa Supreme Court (which had upheld the search).  The case was sent back to the trial court, who re-opened the case and eventually dismissed the case against Knowles.  Why?  Because the drug evidence would then be suppressed on account of the exclusionary rule, which holds that illegally obtained evidence is (usually) inadmissible at court.  Now Knowles has been through a lot!  But without the only evidence of the crime, he goes free.

And a quick review of court records shows that Patrick Knowles was not exactly a model citizen, having convictions for multiple counts of domestic abuse, unauthorized possession of weapons, and probation violations.

(Note: It's difficult to find any further details, but I'm not sure why the Iowa courts didn't allow the evidence to be admissible under the good faith exception to the exclusionary rule established in United States v. Leon in 1984, since the officer was acting in accordance with established state law.)

Now let's return to the second situation.  This is a hypothetical based on the first one, but given the circumstances, is just as likely (or perhaps even more likely) to occur.  As the Supreme Court noted, a "search incident to citation" was lawful in Iowa at the time.  So it seems likely that many such searches occurred at the time.

If the search was illegal in the first situation, it seems obvious that it should also be illegal in the second situation.  However, in the first situation, Knowles has a remedy--the judicially-created exclusionary rule (see Weeks v. United States and Mapp v. Ohio).  What is the remedy for the second driver?

He could file suit against the officer, but because the officer was in performance of his official duties, and acting within already established Iowa law, the officer is likely to enjoy some form of immunity from prosecution; and even if he was prosecuted, the search was not illegal at the time (meaning the officer acted in good faith), nor was the officer acting with any malice.  So in reality, the second driver has no remedy.

By its name and definition, the exclusionary rule only protects those suspected of criminal behavior--it has no effect on, and is no remedy for innocent victims of illegal searches.  A criminal like Knowles is allowed to go free, yet the unnamed drivers who were also stopped but had no contraband have no legal recourse.  Theoretically, the exclusionary rule it is also meant as a disincentive to police and prosecutors--"if your searches aren't legal, we'll throw out the evidence"--but there are already now additional limitations on the exclusionary rule.  So it's difficult to see if the deterrent factor truly exists in all but the most obvious situations.
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