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

The exclusionary rule is a Supervisory Rule created by the Supreme Court in 1914 to prevent the government from introducing evidence in federal criminal trials that was obtained in violation of the United States Constitution.This “Supervisory Rule” is simply a made-up rule to “supervise” the police and to not have the courts involved in using the proceeds of crime; illegally obtained evidence. The Supreme Court’s “rule” is a testament that the law is whatever the Supreme Court says that it is; nothing more.

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. So is the case with the Exclusionary Rule; the rule that prevents the government from introducing evidence in criminal cases that was obtained in violation of constitutional rights of the accused.

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.

What Is The Exclusionary Rule?

In 1914 in Weeks v. United States, 232 U.S. 383 (1914) the Supreme Court held:

“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.)

WHAT IS THE EXCLUSIONARY RULE.

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

Orwellian Newspeak

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.)

HERE COMES THE JUDGE; THE EXCLUSIONARY RULE IS MADE OBLIGATORY ON THE STATES FOR FOURTH AMENDMENT SEARCH AND SEIZURE VIOLATIONS BY THE POLICE.

Dolree Mapp; her case created the 4th amendment exclusionary rule

The U.S. Supreme Court first fashioned the exclusionary rule in Weeks v. United States, 232 U.S. 383 (1914), in which they unanimously held that the warrantless seizure of items from a private residence constitutes a violation of the Fourth Amendment, and is, therefore, inadmissible in evidence against the defendant in the government’s Case-In-Chief, in a federal criminal trial. In 1961, the U.S. Supreme Court first made the Fourth Amendment Exclusionary Rule binding on state law criminal prosecutions. See, Mapp v. Ohio, 367 U.S. 643 (1961) (evidence obtained in violation of the Fourth Amendment’s proscription against unreasonable searches and seizures, inadmissible against state court criminal defendant, in state’s Case-in-Chief.)

HERE COMES THE JUDGE; THE SUPREME COURT MAKES THE FEDERAL FIFTH & SIXTH AMENDMENT’S EXCLUSIONARY RULE OBLIGATORY ON THE STATES.

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.

Ernesto Miranda of Miranda v. Arizona fame
Ernesto Miranda; his case created the 5th and 6th amendment exclusionary rules

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 IS NOT A LICENSE TO LIE WITH IMPUNITY.

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 EXCLUSIONARY RULE IN THE REAL WORLD.

THE DOCTRINE OF INEVITABLE DISCOVERY.,

In many areas of life, the exceptions swallow the rule. Here’s one example.

Under the Doctrine of Inevitable Discovery (created in Nix v. Williams, 467 U.S. 431 (1984), if the police would have soon and inevitably have found the same evidence through Constitutional means, the accused will not be put in a better position that he would have been in, but for the Constitutional violation.

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.

THE EXCLUSIONARY RULE ONLY APPLIES TO THE STATES BECAUSE OF THE SELECTIVE INCORPORATION DOCTRINE.

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.

THE SLAUGHTER-HOUSE CASES AND THE EMERGENCE OF “SELECTIVE INCORPORATION” OF VARIOUS PROVISIONS OF THE FEDERAL CONSTITUTION BEING MADE OBLIGATORY ON THE 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.

THE SUPREME COURT IMPOSES “SELECTED” PROVISIONS OF THE FEDERAL CONSTITUTION ON THE STATES.

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.

Some jurists today would reverse the selective incorporation of the Bill of Rights on the states. For example in a 2018 Concurrence of a 4th Amendment search and seizure case, here a curtilage and automobile exception to the warrant requirement case, Justice Thomas wrote:

[May 29, 2018]

Justice Thomas, concurring.

I join the Court’s opinion because it correctly resolves the Fourth Amendment question in this case. Notably, the only reason that Collins asked us to review this question is because, if he can prove a violation of the Fourth Amendment, our precedents require the Virginia courts to apply the exclusionary rule and potentially suppress the incriminating evidence against him. I write separately because I have serious doubts about this Court’s authority to impose that rule on the States. The assumption that state courts must apply the federal exclusionary rule is legally dubious, and many jurists have complained that it encourages “distort[ions]” in substantive Fourth Amendment law, Rakas v. Illinois, 439 U. S. 128, 157 (1978) (White, J., dissenting); see also Coolidge v. New Hampshire, 403 U. S. 443, 490 (1971) (Harlan, J., concurring); Calabresi, The Exclusionary Rule, 26 Harv. J. L. & Pub. Pol’y 111, 112 (2003). Collins v. Virginia, 584 U.S. ___ (2018)

Jerry L. Steering, Esq., Law Office of Jerry L. Steering, 4063 Birch Street, Suite 100, Newport Beach, CA 92660; jerrysteering@yahoo.com

Four photos of Jerry L. Steering with Bob Dole, Diane Sawyer and Melvin Belli
Jerry L. Steering interviewed on Good Morning America, with co-counsel Bob Dole in Washington, D.C. (Harbert v. U.S.A.) and with former partner Melvin M. Belli (The King of Torts)