Saturday, June 25, 2016

GateHouse: Supreme Court further narrows Fourth Amendment protections

Matthew T. Mangino
GateHouse Media
June 24, 2016

This week, the U.S. Supreme Court ruled that the exclusionary rule does not apply when an officer makes an illegal stop and finds out the “suspect” has a warrant for his arrest and searches the suspect as a result.

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

The court’s decision this week in Utah v. Strieff seems to fly in the face of the landmark holding in Mapp v. Ohio. Mapp 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 the 1961 decision in 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.

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, the late Justice Antonin Scalia cited “increasing professionalism of police” as a reason for the exclusionary rule’s obsolescence.

The court has chipped away at the exclusionary rule. In 2009, 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.

In 2011, the Supreme Court 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.”

Now comes Strieff. Orrin Kerr of George Washington University Law School wrote in the Washington Post, “Strieff is a significant win for the police.” He suggests that “the majority’s approach practically invites police officers to make illegal stops.”

This decision will have significant impact. According to the USA Today, the Justice Department found during its investigation of police misconduct in Ferguson, Missouri, that 16,000 of the city’s 21,000 residents had outstanding warrants. Cincinnati recently had more than 100,000 warrants pending and New York City has 1.2 million outstanding warrants.

— Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, “The Executioner’s Toll, 2010,” was recently released by McFarland Publishing. You can reach him at and follow him on Twitter at @MatthewTMangino.

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