Public Misperception Of The Exclusionary Rule – “The Law Is Crazy

Jerry L. Steering arguing before the Ninth Circuit Court of Appeals in police shooting case, Pasadena, California

The Criminal Procedure Counter-Revolution; Changing The Interpretation Of The Bill Of Rights To Make Previously Deemed Unconstitutional Police Conduct , Now Constitutional, So The Evidence Is Admissible In Court

Public Misperception Of The Exclusionary Rule-“The Law Is 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 Constitional 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 Miranda warnings (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 Miranda rights, 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. SFPD Inspector 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

Champion of Liberty; Felix Frankfurter; Associate Justice of the United States Supreme Court 1939 – 1962

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, 59 S.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.)

Accordingly, the Unintended Consequences Of The Exclusionary Rule On Americans’ Constitutional Rights, is the gutting of our civil liberties; our protection against government oppression.

Chief Justice Warren Berger suggested, that instead of excluding incriminating evidence at criminal trials if the evidence was obtained in violation of a civilian’s constitutional rights, that the civilian be able to pursue a civil remedy against the offending officer. This, of course, is unrealistic. No one is interesting in giving convicts money, because the police that committed the unlawful search and/or arrest, violated their reasonable expectation of privacy when they recovered the heroin. Great lawsuit.

However, if there were a mandatory statutory penalty that a criminal court judge must impose on an individual peace officer that could not be paid by the tax payers, things might change (a little.)

Another alternative to the status quo with the exclusionary rule, is to have the states ratify a constitutional amendment, that provides that Constitutional rulings in criminal actions, are not stare decisis (binding precedent) on the same Constitutional provision in civil actions. There isn’t any prohibition against the government defending itself in civil actions, with unlawfully obtained evidence. So, things are not the same for evidentiary purposes in civil and criminal actions, and so, why not. Something to think about.

LAW OFFICES OF JERRY L. STEERING

Jerry L. Steering, Esq.

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