How The Exclusionary Rule Backfired And Crushed Americans’ Constitutional Rights
In a very real sense, there is no such thing as “the law.” There is no real live “formula” or precise wording of statutes or ballot propositions, that the voters or the legislature, either do, or could, be made to do justice in any given situation.
Things change, and the drafters of the statutes and ballot propositions aren’t all knowing and can’t envision every possible situation that their “law” would effect. When that happens, appellate courts often result to Latin phrases and “equitable remedies“ to inject their view of justice into the outcome of various cases. In a very real sense, all that law is, is the combination of rules and some sort of enforcement mechanism for those rules. Our concept of “justice” and “good versus evil” really does change. That enforcement mechanism has to give enough for that change in morals and what is acceptable or normal.
What Is “The Common Law”?
The common law is a legal system that is largely formed by the decisions previously made by courts and not imposed by legislatures or other government officials. The term “common law” also underlines the fact that this type of law did not originate from equity, maritime and other special branches of law. Statutes serve as brief explanations of law and therefore are not very explanatory. Codification is the process by which a statue is passed, expressed within a single document, so that it is understood within existing law rather than creating the need for new laws.
The entire premise of the King’s Bench (or the Queen’s Bench, depending on who’s the Sovereign), is that no one can predict the circumstances that might arise in some future time and place. This ancient purpose of the common law was based on this understanding. That is, if no legal remedy for your unjust situation
then existed, then one should, and one shall, be created, as justice was the ultimate goal. The English Courts and American Colonial Courts carried on this tradition, of making right out of wrong, and fulfilling their guiding light: “for every wrong there is a remedy.” They even divided Courts, into “Courts of Law”, and “Courts of Equity”. If the Judge of a Court of Law could not, or would not, provide one a “legal remedy”, one may turn to the Chancellor of the Court of Equity, to provide an “equitable remedy”, for an otherwise unjust situation. Not such a bad idea; so long as you have the right people making those calls.
These ancient principles of the King’s Bench, we use to this day in everyday lawmaking in ”Opinions” by the by the various state and federal appellate courts. Court Opinions, are the pronouncements of judges on the legal controversies that come before them. In a common law system, Court Opinions constitute the law by which all controversies are settled. Attorneys analyze prior Opinions on similar legal issues; attempting to draw parallels between their case and favorable Court Opinions, and to distinguish unfavorable Court Opinions. Judges study relevant Opinions in rendering their decisions. Most good appellate jurists attempt to bring “justice” to ever changing and unforeseeable situations, through the vehicle of Court Opinions, in a rapidly changing world.
The Common Law And The Exclusionary Rule:
There simply are situations that arise, that abiding by the “rules” would be unjust, and wouldn’t serve the purpose of the legislation / initiative. There are situations that no one could have envisioned to arise. The common law is what we apply to real life situations that would result in what the majority of us would perceive as justice in any given fact situation, or what we perceive as violative or in conformity with, a statute or a Constitutional provision.
“The tendency of those executing Federal criminal laws to obtain convictions by means of unlawful seizures and enforced confessions in violation of Federal rights is not to be sanctioned by the courts which are charged with the support of constitutional rights.
The Federal courts cannot, as against a seasonable application for their return, in a criminal prosecution, retain for the purposes of evidence against the accused his letters and correspondence seized in his house during his absence and without his authority by a United States marshal holding no warrant for his arrest or for the search of his premises.
While the efforts of courts and their officials to bring the guilty to punishment are praiseworthy, they are not to be aided by sacrificing the great fundamental rights secured by the Constitution.”
That is the real birth of the great exclusionary rule. It is virtuous, and it is the right decision. The exclusionary rule was first applied to the states, via the Selective Incorporation Doctrine, in 1961 in Mapp v. Ohio, 367 U.S. 643 (1961.)
The “Exclusionary Rule” is a prophylactic measure that was created by the United States Supreme Court, to prevent the government from using evidence in a criminal case against the accused, that was obtained in violation of the United States Constitution. The Exclusionary Rule was “created” by the Supreme Court to deter Constitutional violations by peace officers. The Exclusionary Rule is not an independent Constitutional right, even though the Exclusionary Rule is only triggered by government violations of an individual’s
Constitutional rights (this is “newspeak“ at its finest; Mr. Orwell would be proud of his powers of foresight.) In other words, the United States Constitution provides certain protections persons against government actions, such as illegal searches and seizures (under the Fourth Amendment to the Constitution), and retaliating against persons for them exercising their right to free speech, such as criticizing, protesting or challenging government /police actions (under the First Amendment to the Constitution.)
Moreover, unless acting in a conspiracy to violate a person’s Constitutional rights, a private person cannot violate the Constitutional rights of another; only the government can (See, Adikes v. S.H. Kress & Co.,398 U.S. 144 (1970).) When evidence is obtained by the government in violation of those Constitutional rights, the courts will often exclude such evidence from being introduced at a person’s criminal trial, to deter future Constitutional violations by the police.However, courts will not apply the Exclusionary Rule to exclude illegally obtained evidence, where the costs of exclusion outweigh its deterrent or remedial benefits (this in itself is a policy decision by the Supreme Court; not something written in the Constitution, as was the Miranda decision itself.) Thus, the Exclusionary Rule is not triggered when courthouse errors lead police officers to mistakenly believe that they have a valid search warrant, because excluding the evidence would not deter police officers from violating the law in the future. See, Arizona v. Evans, 541 U.S. 1 (1995.) Moreover, the courts will not exclude illegally obtained evidence at a criminal defendant’s trial, when the government would have inevitably have found the incriminating evidence without any such Constitutional violation. See, Nix v. Williams, 467 U.S. 431 (1984.)
The Exclusionary Rule In The Real World:
In many areas of life, the exceptions swallow the rule. Here’s one example.
In (the famous “Christian Burial” case), Williams was arrested for the murder of a ten year old girl whose body he disposed of along a gravel road in an open culvert. State law enforcement officials engaged in a search for the child’s body. Meanwhile, Williams surrendered to local police in Davenport, Iowa, where he was promptly arraigned. Williams contacted a Des Moines attorney who arranged for an attorney in Davenport, Iowa, to meet Williams at the Davenport police station. Des Moines police informed counsel they would pick Williams up in Davenport and return him to Des Moines without questioning him. Two Des Moines detectives then drove to Davenport, took Williams into custody, and proceeded to drive him back to Des Moines; some 160 miles away.
During the search, in response to an officer’s appeal for assistance (tells us where the body is because “Every one deserves a Christian burial”), Williams made statements to the police (without an attorney present) which helped lead them to the body. Williams was only read his Miranda rights after he was arrested. Thus, although the location of the girl’s body was obtain in violation of Williams right to counsel (he asked for a lawyer to be present), a search party of several hundred people were contemporaneously searching a small rural area, and would have “inevitably” found the girl’s body in an open culvert within minutes of the police doing so from the information so illegally obtained from Williams. The Supreme Court refused to exclude the evidence of the girl’s body, because the search party would have very soon and inevitably found the girl’s body in the same field that the police found the body in.
In 1966, the U.S. Supreme Court applied the Exclusionary Rule to admissions and confessions that were obtained by police officials in violation of a persons’ Fifth Amendment right against self-incrimination. See,Miranda v. Arizona, 384 U.S. 439 (1966).Miranda also held that evidence obtained in situations where the government violated defendants Sixth Amendment Right to Counsel (i.e. denial of the right to have your lawyer present when being questioned while in police custody) is also inadmissible at a criminal defendant’s trial in the prosecution’s Case-In-Chief.
Miranda v. Arizona also held that statements made by persons in police custody in response to police questioning are also similarly inadmissible against the defendant at trial, if the defendant was not first “read his rights”, or given his “Miranda Warnings“. Contrary to popular myth, there is no requirement in the law that police officers read persons their Miranda Warnings when they arrest them; only when they want to interrogate them, and only then, if the police want to use the defendant’s statements in the prosecution’s Case-in-Chief in a criminal case. However, police officers are often encouraged to violate Miranda, because they are more interested in obtaining the arrestee’s statement closely following a false arrest, (especially when it’s coupled with a good old police beating), to defend the arrestee’s possible future civil case against the police for the beating and bogus arrest. Since the Miranda rule does not apply to civil cases, the police can falsely arrest a civilian, not Mirandize them (give them their Miranda warnings), and interrogate them in the coercive atmosphere of being interrogated, in police custody.)
In addition, If evidence that falls within the scope of the exclusionary rule led law enforcement to other evidence, which they would not otherwise have located, then the exclusionary rule applies to the related evidence found subsequent to the excluded evidence as well. Such subsequent evidence has taken on the name of the fruit of the poisonous tree.
The Exclusionary Rule also does not prevent the government from introducing illegally gathered evidence to impeach, or attack the credibility of, a criminal defendant’s testimony at trial. The Supreme Court recognized this exception to prevent perjury. Even when the government suspects perjury, however, it may only use tainted evidence for impeachment, and may not use it to show guilt. Therefore, even if a criminal defendant’s custodial statements were obtained in violation of Miranda, if he/she gets on the witness stand and testifies, the defendant’s illegally obtained statements can then be introduced against the defendant in court.
Due to qualified immunity, the Exclusionary Rule is often defendants only remedy when police officers conduct an unreasonable search or violate their Miranda rights. Even if officers violate a defendant’s constitutional or statutory rights, qualified immunity protects them from suit unless no reasonable officer would believe that their conduct was legal
The selective incorporation doctrine is a doctrine created by the Supreme Court through which selected provisions of the Bill of Rights are made obligatory on the states through the Due Process clause of the Fourteenth Amendment. Under the Selective Incorporation Doctrine, state governments are held to the same standards as the Federal Government regarding certain constitutional rights; those rights that the Supreme Court deems fundamental to the “ordered liberty” necessary in a free society.
The debate over whether the Fourteenth Amendment makes obligatory on the states all of the protections of the Bill of Rights is one of the most important and longest-lasting debates involving interpretation of the U. S. Constitution. The Supreme Court’s first interpretation of the scope of the Fourteenth Amendment, adopted in 1868, was rendered in Slaughter-House Cases, 83 U.S. 36 (1872) just five years later. By a 5 to 4 vote the Supreme Court narrowly interpreted the Privileges and Immunities Clause (of the Fourteenth Amendment), thought to be the most likely basis for enforcing individual rights against states.
In the Slaughter-House Cases, 83 U.S. 36 (1872), the Supreme Court held that the Privileges and Immunities clause of the Fourteenth Amendment placed no restriction on the police powers of the state and it was intended to apply only to privileges and immunities of citizens of the United States and not the privileges and immunities of citizens of the individual states. This decision effectively put state laws beyond the review of the Supreme Court. To circumvent this, the Supreme Court began a process called “selective incorporation” by gradually applying selected provisions of the Bill of Rights to the states through the Fourteenth Amendment Due Process clause.In subsequent cases, attention focused on the Due Process Clause.
Beginning in the early twentieth century the Supreme Court began to selectively incorporate some of the specific provisions of the Bill of Rights while rejecting the incorporation of others, via the Due Process Clause of the Fourteenth Amendment. The Court’s test for choosing which provisions–along with all the accompanying baggage of decisions interpreting the federal rights–were incorporated changed over time.
The “modern view,” as reflected in cases such as Duncan v. Louisiana, 391 U.S. 145 (1968)is that provisions of the Bill of Rights “fundamental to the American scheme of justice” (such as the right to trial by jury in a serious criminal case) were made applicable to the states by the Due Process Clause of the Fourteenth Amendment whereas other provisions (such as the right to a jury trial in a civil case involving more than $20) were not made applicable.
During the Twentieth Century, especially in the 1960′s, the United States Supreme Court handed down a series of cases that made certain provisions of the Bill of Rights obligatory on the states. When they did that, the states were similarly now obligated to exclude from evidence at the trial of a criminal case, evidence obtained by state actors in violation of those provisions of the Bill of Rights. Those provisions of the Bill of Rights that have now been made obligatory on the states are shown below:
This right has been incorporated. Although not in the words of the first amendment, this right was first mentioned in the case NAACP v. Alabama, 357 U.S.449 (1958) and was at that time applied to the states.
The Tenth Circuit has suggested that the right is incorporated because the Bill of Rights explicitly codifies the “fee ownership system developed in English law” through the Third, Fourth, and Fifth Amendments, and the Fourteenth Amendment likewise forbids the states from depriving citizens of their property without due process of law. See United States v. Nichols, 841 F.2d 1485, 1510 n.1 (10th Cir. 1988.)
The remedy of exclusion of unlawfully seized evidence, the Exclusionary rule, has been incorporated against the states. See, Mapp v. Ohio, 367 U.S.643 (1961). In Mapp, the Court overruled Wolf v. Colorado, 338 U.S.25 (1949), in which the Court had ruled that while the Fourth Amendment applied to the states (meaning that they were bound not to engage in unreasonable searches and seizures), the exclusionary rule did not (meaning that they were free to fashion other remedies for criminal defendants whose possessions had been illegally seized by the police in violation of the Fourth Amendment).
A note about the Miranda warnings: The text of the Fifth Amendment does not require that the police, before interrogating a suspect whom they have in custody, give him or her the now-famous Mirandawarnings. Nevertheless, the Court has held that these warnings are a necessary prophylactic device, and thus required by the Fifth Amendment by police who interrogate any criminal suspect in custody, regardless of whether he or she is ultimately prosecuted in state or federal court.
This right has been incorporated against the states. See Duncan v. Louisiana, 391 U.S.145(1968). However, the size of the jury, as well as the requirement that it unanimously reach its verdict, vary between federal and state courts. Even so, the Supreme Court has ruled that a jury in a criminal case may have as few as six members. Williams v. Florida, 399 U.S.78 (1970). If there are twelve, only nine jurors need agree on a verdict. Furthermore, there is no right to a jury trial in juvenile delinquency proceedings held in state court. See McKeiver v. Pennsylvania, 403 U.S.528 (1971.)
This right has not been incorporated against the states. See Caudill v. Scott, 857 F.2d 344 (6th Cir. 1988); Cook v. Morrill, 783 F.2d 593 (5th Cir. 1986); Zicarelli v. Dietz, 633 F.2d 312 (3d Cir. 1980.)
This right has been incorporated against the states. See Gideon v. Wainwright, 372 U.S.335(1963). In subsequent decisions, the Court extended the right to counsel to any case in which a jail sentence is imposed.
This provision may have been incorporated against the states. In Schilb v. Kuebel, 404 U.S. 357 (1971), the Court stated in dicta: “Bail, of course, is basic to our system of law, and the Eighth Amendment’s proscription of excessive bail has been assumed to have application to the States through the Fourteenth Amendment.” In Murphy v. Hunt, 455 U.S.478 (1982), the Court did not reach the issue because the case was dismissed as moot. Bail was included in the list of incorporated rights in McDonald footnote 12, citing Schilb.
This provision has been incorporated against the states. See Robinson v. California, 370 U.S.660 (1962). This holding has led the Court to suggest, in dicta, that the excessive bail and excessive fines protections have also been incorporated. See Baze v. Rees, 128 S. Ct. 1520, 1529 (2008).
The Criminal Procedure Counter-Revolution; Changing The Bill Of Rights
Public Misperception Of The Exclusionary Rule; The Law Must Be Crazy
People who believe the Courts are a bunch of “liberal judges” who let the criminals go free for the slightest technicality, have no concept of reality. They are watching too much TV. In fact, most people don’t have a clue as to what Constitutional rights they either have, or used to have. Most of the American body politic believes that when the police arrest you, that they are somehow obligated to read you your Mirandawarnings (being advised of your Fifth Amendment rights against self-incrimination, and your Sixth Amendment right to counsel.) A great majority of the American public are under the mistaken impression that if the police arrest you and don’t read you your Mirandarights, that you somehow now go free. Well, the police aren’t obligated to read you your rights when they arrest you, and they usually don’t; especially when the police witnessed or particiated in the event that they are calling a crime. Any lawyer or police officer knows this. Nonetheless, the words uttered by professional actors in theatrical dramas, are the actual presumptive standard for the majority of the voters.
The 1971 movie “Dirty Harry”, depicts a sadistic serial killer named “Scorpio” (Andy Robinson) who derived sadistic and psychotic pleasure from murdering random civilians in San Francisco. First he kills a lady swimming in a rooftop swimming pool, using a high-powered rifle from a nearby rooftop. SFPDInspector Harry Callahan (Clint Eastwood) finds a ransom message demanding the city pay Scorpio $100,000. Scorpio also promises that for each day that the city refuses his demand, he will commit a murder, and his next victim will be “a Catholic priest or a nigger“. The Chief of Police and the Mayor (John Vernon) assign the Inspector Callahan (Clint Eastwood) to the case, though the Mayor is reluctant to assign Inspector Callahan because of an incident involving the shooting of a naked man who was chasing a woman with a butcher knife by Callahan the previous year in the city’s Fillmore District.
Scorpio kidnaps, rapes, and buries alive a teenage girl, then demands twice his previous ransom before the girl’s air runs out. The mayor decides to pay, and tells Inspector Callahan to deliver the money with no tricks, but the inspector wears a “wire“, brings a switch blade knife, and has his partner follow him. As Scorpio sends Inspector Callahan to various payphones throughout the city to make sure he is alone, the chase ends at Mount Davidson. Scorpio brutally beats Callahan and tells him he’s decided to let the girl die anyway; Officer Gonzalez comes to his partner, Inspector Callahan’s rescue, but is wounded. Inspector Callahan stabs Scorpio in the leg, but the killer escapes without the money. Officer Gonzalez survives his wound, but decides to resign from the force at the urging of his wife.
The doctor who treated Scorpio phones the police and tells Callahan and his new partner, Frank DiGiorgio (John Mitchum), that he has seen Scorpio before, and that he thinks that Scorpio (the wounded man that he treated for the stab wound), works at and has a bed room in Kezar Stadium. Running out of time, Callahan and his new partner break into Scorpio’s stadium living quarters; looking for Scorpio and/or evidence of the buried girls whereabouts, finds the rifle that Scorpio used to kill the girl on the roof top pool, and sees Scorpio running away, on the football field itself. Inspector Callahan then shoots the fleeing Scorpio in his already stab-wounded leg. When Scorpio refuses to reveal the location of the girl and demands a lawyer, Callahan tortures the killer, by standing on and grinding Scorpio’s wounded leg until he reveals the girl’s whereabouts. However, by the time that the SFPD is able to go to the girl’s burial site, they find her dead; suffocated.
Because Callahan searched Scorpio’s home (a live-in custodian’s room at a local football stadium) without a warrant and “improperly” seized his rifle“, the District Attorney tells Inspector Callahan, that the killer cannot be charged with the murder of the girl in the rooftop swimming pool, because the rifle (that was used to shoot the girl and was found by Callahan in Scorpio’s lair at the stadium) was located and seized in violation of Scorpio’s Fourth Amendment rights, because “Dirty Harry” located and seized the rifle without a search warrant. The District Attorney also tells Inspector Callahan that they can’t even prosecute Scorpio for the murder of the buried girl, because her body was found as the product of “Dirty Harry” torturing a confession out of Scorpio.
This advisement that the search was unlawful, was reiterated by a California Court of Appeal Judge, who is seen sitting in the San Francisco District Attorney’s Office, advising the DA and Inspector Callahan, that the evidence was inadmissible in court against Scorpio (Judges don’t do that; at least until after they retire.) When the DA and the Judge tells Dirty Harry that the law dictates that the evidence was inadmissible in court against Scorpio, Dirty Harry tells remarks that he didn’t have time to get a search warrant. When the DA tells Callahan, that’s the law, Dirty Harry tells the DA “then the law is crazy”, and is taken off of the case; warning that Scorpio will kill again (in the film Scorpio later kidnapped a school bus full of children at gunpoint, and ended-up getting his “head blown clean off” by Dirty Harry’s .44 Magnum revolver; “The Most Powerful Handgun In The World”.)
Moreover, under the scenario described above, the search by Dirty Harry wasn’t unlawful at all. There was no time for Inspector Callahan to have sought a search warrant, because “Scorpio” was telling the police that the kidnapped girl only had an hour or two of air left in her buried prison, and evidence of the girl’s whereabouts might be found in Scorpio’s living quarters at the stadium. However, Dirty Harry wouldn’t be Dirty Harry if he didn’t step on a few Constitutional Rights to achieve curbside justice. So, the viewing audience is now convinced that “liberal judges” have created Constitutional prohibitions against seemingly reasonable police conduct. Their view of the Constitution has been distorted, because the viewers are led to believe that “the law is crazy”, and that police officers who ignore Constitutional constraints on their conduct are in the right, and heroes for doing so. Lesson learned by the body politic; the Constitution contains stupid technicalities created by liberal Judges, that stand in the way of public safety and justice itself.
Unfortunately, since most Americans learn criminal procedure by watching dramas, the voters, who elect the politicians, who appoint most of the state court Judges, and all federal (Article III) Judges (i.e. United States District Judges, all Judges of the United States Court of Appeals, and the Justices of the United States Supreme Court.) As a result, in California criminal cases, the Appellate Courts very often distort and pervert (i.e. actually change, via judicial fiat,) the contours the protections provided for in the United States Constitution, by simply stating that the Constitution doesn’t prohibit a particular form of government conduct (anymore, or ever), so they don’t have to exclude evidence in a criminal trial; evidence that will often prove the defendant’s guilt, and without which, the government has no case. This, unfortunately, is the unintended consequence of the exclusionary rule; the rule created by the United States Supreme Court, to curb unconstitutional police conduct, by excluding evidence obtained in violation of the defendant’s Constitutional rights.
When Judges are faced with a choice of either excluding incriminating evidence at criminal trial because it was obtained in violation of the federal Constitution (or in many states, the state Constitution), or simply reinterpreting (changing) the protection that a particular constitutional provision provides, Appellate Court Judges often change the protections of the Constitutional provision, to let the evidence in. Although this may be just wonderful for convicting the guilty, the consequences of reducing the protections afforded to all persons under a particular Constitutional provision, undermines the liberty interests of the rest of us innocent people:
“By the Bill of Rights the founders of this country subordinated police action to legal restraints, not in order to convenience the guilty but to protect the innocent. Nor did they provide that only the innocent may appeal to these safeguards. They knew too well that the successful prosecution of the guilty does not require jeopardy to the innocent. The knock at the door under the guise of a warrant of arrest for a venial or spurious offense was not unknown to them. Compare the statement in Weeks v. United States, 232 U.S. 383, 390, 34 S.Ct. 341, 343, that searches and seizures had been made under general warrants in England ‘in support of charges, real or imaginary.’ We have had grim reminders in our day of their experience. Arrest under a warrant for a minor or a trumped-up charge has been familiar practice in the past, is a commonplace in the police state of today, and too well-known in this country. See Lanzetta v. New Jersey, 306 U.S. 451, 59S.Ct. 618, 83 L.Ed. 888. The progress is too easy from police action unscrutinized by judicial authorization to the police state. The founders wrote into the Constitution their conviction that law enforcement does not require the easy but dangerous way of letting the police determine when search is called for without prior authorization by a magistrate. They have been vindicated in that conviction. It may safely be asserted that crime is most effectively brought to book when the principles underlying the constitutional restraints upon police action are most scrupulously observed.”United States v. Rabinowitz, 339 U.S. 56 (1950); Frankfurter, J.
Accordingly, the Unintended Consequences Of The Exclusionary Rule On Americans’ Constitutional Rights, is the gutting of our civil liberties; our protection against government oppression.