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| U.S. Supreme Court further narrows exclusionary rule
PENNSYLVANIA LAW WEEKLY
By: Matthew T. Mangino
Last month the U.S. Supreme Court further restricted the use of the exclusionary rule as a remedy for state conduct violating the Fourth Amendment. The U.S. and Pennsylvania Supreme Courts have long recognized that not every violation of the Fourth Amendment requires the exclusion of evidence obtained as a result of a defective warrant, a warrantless search or illegal arrest. However, Pennsylvania has not followed the U.S. Supreme Court in carving out exceptions to the exclusionary rule. Has the time come for the Pennsylvania Supreme Court to reconsider its position on the exclusionary rule?
The Fourth Amendment to the United States Constitution requires governments to respect the rights of people to be secure against unreasonable searches and seizures. Mapp v. Ohio, 367 U.S. 643 (1961) was one of a number of landmark civil liberties cases decided by the Warren Court. In Mapp, a womans home was entered without a warrant and obscene materials were confiscated that resulted in her conviction. The high court decided that the Fourth Amendment applied to the states through the due process clause of the Fourteenth Amendment and therefore the sanction of exclusion was available to state courts as it existed in the federal courts.
Prior to Mapp, Pennsylvania did not recognize an exclusionary remedy for illegally obtained evidence. However, Pennsylvania followed the dictates of Mapp and began to exclude evidence obtained through illegal arrests and illegal search and seizures. As the exclusionary rule evolved Pennsylvania chose not to follow the lead of the U.S. Supreme Court as it related to exceptions to the exclusionary rule.
In U.S. v. Leon, 468 U.S. 897 (1984), California police officers acting on a tip from a confidential drug informant obtained a search warrant. The search of the suspects residence, and automobile, uncovered a large quantity of illegal drugs.
The California District Court found that the affidavit failed to meet the requirements for probable cause and suppressed the evidence discovered through the search warrant. The Court of Appeals affirmed the trial courts decision.
The U.S. Supreme Court reversed the Appeals Court and found that where a police officer is acting in objective good faith, based upon a search warrant issued by a judge, the Fourth Amendment does not require exclusion of the evidence.
The Leon court in creating the good-faith exception found that the exclusionary rule operates as a judicially created remedy designed to safeguard Fourth Amendment rights generally through the deterrent effect rather than a personal constitutional right of the party aggrieved.
The U.S. Supreme Court has extended the good-faith exception to the exclusionary rule. The high court ruled that the Fourth Amendments exclusionary rule does not apply to evidence obtained by police who acted in objectively reasonable reliance upon a statute authorizing warrantless administrative searches that were subsequently found to be unconstitutional, Illinois v. Krull, 480 U.S. 340 (1987). The high court applied the good-faith exception to police who reasonably relied on mistaken information in a courts database that erroneously indicated that an arrest warrant remained outstanding, Arizona v. Evans, 514 U.S. 10 (1995).
Last month, the U.S. Supreme Court took the good-faith exception one step further in Herring v. United States, 555 U.S. ___ (2009). The U.S. Supreme Court invoked the good-faith exception to the exclusionary rule, when the court found that an unintentional police administrative error was not enough to suppress evidence obtained by means of an illegal arrest.
The law in Pennsylvania with regard to the exclusionary rule has gone in a different direction. In Commonwealth v. Edmunds, 586 A.2d 887 (1991) the Pennsylvania Supreme Court suggested that the sole question in this case, therefore, is whether the constitution of Pennsylvania incorporates a good-faith exception to the exclusionary rule, which permits the introduction of evidence seized for probable cause as lacking on the face of the warrant.
The Edmunds court held that the good-faith exception to the exclusionary rule as articulated by the U.S. Supreme Court in Leon would frustrate the guarantees embodied in Art. I, Sec. 8 of the Pennsylvania Constitution.
The exclusionary rule has never been considered absolute. The emphasis of the rule, on the federal level, has been to deter police from intentionally or flagrantly violating a suspects constitutional right to be free from unlawful search and seizure. The high court in Leon wrote, We have never suggested that the exclusionary rule must apply in every circumstance in which it might provide marginal deterrents.
In Edmunds, the Pennsylvania Supreme Court refused to accept the exception carved out by Leon. The refusal was based on privacy rights contained within the Pennsylvania Constitution. The court held what is significant here, however, is that our constitution has historically been interpreted to incorporate a strong right of privacy (Art. I, Sec. 8) &citizens in this commonwealth possess such rights, even where a police officer in good-faith carrying out his or her duties inadvertently invades the privacy or circumvents the strictures of probable cause.
In addition to privacy concerns the Pennsylvania Supreme Court also emphasized that Pennsylvania Rules of Criminal Procedure require that probable cause for a search warrant must be established in a written affidavit attached to the warrant and may not be established by extraneous oral testimony.
The U.S. Supreme Courts recent decision in Herring will have little impact on Pennsylvania. The high court found that to trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. The price paid by the justice system is that an obviously guilty offender would walk free. In Pennsylvania, the frustration lies in the fact that the offenders prosecution could be thwarted, not by deliberate, reckless or grossly negligent police conduct, but rather the mere negligence of an otherwise competent law enforcement agency.
The ruling in Herring is narrow and an extension of the high courts prior rulings restricting the application of the exclusionary rule. The U.S. Supreme Court has continued to emphasize the deterrent effect of the exclusionary rule while Pennsylvania continues to emphasize the privacy rights of the accused.
How far should privacy rights extend and at what cost? In Philadelphia, does a violent convicted felon have a privacy right to possess a firearm? Should that felon not be prosecuted because a Sheriffs office database failed to purge a warrant, or court personnel failed to rescind a bench warrant?
The exclusionary rule has an appropriate place in the criminal justice system. The rule is chiefly responsible for making police operations more efficient and law enforcement practices less arbitrary. The police should be held accountable for all conduct that deliberately contravenes constitutional rights.
Last fall, the Pennsylvania Supreme Court decided Kerr v. Pennsylvania State Board of Dentistry, 960 A.2d 427 (2008). The high court ruled that the exclusionary rule does not apply to civil administrative cases. More importantly, the dueling concurring opinions of Chief Justice Castille and Justice Baer signaled that the high court may be on the verge of revisiting privacy interests as they relate to public safety. Pennsylvania would do well to strike a balance between the privacy rights of an accused and the safety of the general public.
(Matthew T. Mangino is the former district attorney of Lawrence County, Pennsylvania. He can be reached at matthewmangino@aol
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