Sunday, July 3, 2011

Is the Rule Obsolete?

The Youngstown Vindicator
July 3, 2011

This summer marks the 50th anniversary of the landmark U.S. Supreme Court decision Mapp v. Ohio. The case originated out of Cleveland, where police were looking for a fugitive and forced their way into Dollree Mapp’s apartment without her consent. While in the apartment the police confiscated illegal material and arrested Mapp.

Forty-seven years before Mapp the U.S. Supreme Court ruled that evidence collected in federal prosecutions that violated the Fourth Amendment ban against illegal search and seizures would be excluded from trial. The exclusionary rule, as it became known, was available to all defendants in federal court. However, the rule had not been recognized or applied by all states. Ohio was one of those states that did not recognize the exclusionary rule.

Mapp v. Ohio changed the nation’s jurisprudential landscape. Mapp explicitly held that the exclusionary rule applies to the states and as a result state prosecutors could not use evidence gained by illegal or improper means to obtain a conviction.

The rationale behind the exclusionary rule was to deter police misconduct. If the police intentionally circumvented their obligation to get a search warrant or if the police were just inept, the penalty would be significant — the inability to use the evidence illegally obtained.

Target of assault

Many Supreme Court observers suggested that the Mapp decision would be detrimental to law enforcement. The courts would be inundated with challenges and the guilty would go free in droves. The exclusionary rule has been the target of a 50-year assault by conservatives who contend the rule is a boondoggle for criminals.

What the exclusionary rule actually produced was improved police work. The law enforcement training that grew out of the Mapp decision has enhanced the quality of police investigations and protected the rights of individual citizens. In 2005, Justice Antonin Scalia cited “increasing professionalism of police” as a reason for the exclusionary rule’s obsolescence.

In 2009, the assault on the exclusionary rule continued. The Supreme Court found that evidence confiscated as the result of an arrest that was the product of an expired warrant was not subject to exclusion. The Court found that negligence by one police department in failing to remove a warrant did not contaminate evidence obtained by a different police department that was unaware the arrest warrant was invalid.

Narrowing the rule

Last month, almost 50 years to the day that Mapp was decided, the U.S. Supreme further narrowed the exclusionary rule. Police in Alabama arrested Willie Davis. After he was handcuffed and placed in the backseat of a police cruiser Davis’ car was searched. The police found a gun. The police were in conformity with the law as it existed at the time the warrantless search of Davis’ car was conducted.

Subsequently, the law changed and Davis sought to have the evidence excluded. The Supreme Court refused to exclude the evidence. Justice Samuel Alito concluded that suppression of evidence as the result of a change in the law, a change that came after a lawful search, “would do nothing to deter police misconduct.”

For those who believe that the exclusionary rule is an important tool for preserving some of the U.S. Constitution’s most fundamental rights, the Davis v. United States decision is alarming. The decision itself is narrow; the real concern lies in the fact that the Court’s newest members, Justice Sonia Sotomayor and Justice Elena Kagan joined with the conservative faction of the Court in finding the exclusionary rule did not apply in Davis.

If Davis is indicative of the direction the newly reconfigured U.S. Supreme Court is headed with regard to the exclusionary rule — the idea of penalizing police misconduct may soon be a thing of the past.

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