CREATORS: Let History Guide the Court on Deportation Issue

 Matthew T. Mangino
CREATORS
April 22, 2025

What happens when the government violates an individual's constitutional rights? We may soon find out as the United States Supreme Court has agreed to hear a case involving the federal government's deportation of noncitizens in violation of a court order and without due process of law.

The Supreme Court's response to unconstitutional conduct by law enforcement as it relates to individuals accused of a crime may serve as a guide.

In 1961, the high court created a dramatic remedy that would prevent the prosecution of an accused whose constitutional rights had been violated. The Court established the exclusionary rule, which remains controversial to this day.

In 1957, Cleveland, Ohio police officers went to the home of Dollree Mapp looking for a suspect in a criminal investigation. She refused to let the police in without a warrant.

The police left, and when they returned, they were armed with a phony warrant. Chicanery took the place of real police work. Instead of going to a judge to get a warrant, they drew up their own. After entering Mapp's home, police searched and confiscated obscene material, resulting in Mapp's arrest.

As a result of the police misconduct, the Supreme Court, in Mapp v. Ohio, provided a remedy — the exclusion of illegally obtained evidence from admission in a criminal prosecution — resulting in a dismissal of the charges.

The rationale behind the exclusionary rule was to deter police misconduct. If police intentionally circumvented their obligation to get a search warrant, or deprived an accused of due process, the penalty would be significant — the inability to use any evidence illegally obtained.

Over the last half century, the Supreme Court has whittled away at the exclusionary rule. The court has ruled that the exclusionary rule does not apply if the police obtained no advantage by their unlawful conduct, if a judge improvidently issued a warrant or if a valid warrant was illegally served.

In 2009, the assault on the exclusionary rule continued. The Supreme Court found that evidence confiscated as a 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 of the invalid arrest warrant.

In 2011, the U.S. 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. They 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."

In 2016, Supreme Court Justice Clarence Thomas wrote an opinion in a Utah case ruling that evidence obtained from an unlawful police stop would not be excluded from court because the link between the stop and the evidence's discovery was "attenuated" by the discovery of an outstanding warrant during the stop.

Despite the Supreme Court's diminution of Mapp v. Ohio, history has looked kindly on the Warren Court and the important protections provided by the court to men and women accused of crime.

The current Supreme Court has stepped in to halt deportations to El Salvadore temporarily. The Trump administration faces possible contempt for prior deportations and specifically for the mistaken deportation of Kilmar Abrego Garcia. History will remember what remedy the Supreme Court crafts, if any, for Garcia and the other Venezuelans deported without due process.

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

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MCN/USA TODAY NETWORK: A landmark decision marks its 60th anniversary

Matthew T. Mangino
More Content Now/USA TODAY NETWORK
March 5, 2021

This year marks the 60th anniversary of the landmark U.S. Supreme Court decision in Mapp v. Ohio. In 1957, Cleveland, Ohio police officers went to the home of Dollree Mapp looking for a suspect in a criminal investigation.  She refused to let the police in without a warrant.

The police left, and when they returned, they were armed with a “fake” warrant. Chicanery took the place of real police work. Instead of going to a judge to get a warrant, the police drew up their own. After entering Mapp’s home, police conducted a search and confiscated obscene material resulting in Mapp’s arrest.

As a result of the police misconduct the Supreme Court provided a remedy—the exclusion of illegally obtained evidence from admission in a criminal prosecution—resulting in a dismissal of the charges.  

 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 only available to defendants in federal court. Mapp v. Ohio changed that and altered the nation’s jurisprudential landscape. As a result, state prosecutors were also banned from using evidence gained by illegal or improper means.            The rationale behind the exclusionary rule was to deter police misconduct. If 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.            

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 60-year assault by conservatives that contend the rule is a boondoggle for criminals.           

Over the last 60 years, the Supreme Court has whittled away at the exclusionary rule. The court has ruled that the exclusionary rule does not apply if the police obtained no advantage by their unlawful conduct, if a warrant was improvidently issued by a judge, or if a valid warrant was illegally served.

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 of the invalid arrest warrant.            

In 2011, the 50th anniversary of the Mapp decision, the U.S. 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.”

In 2016, Supreme Court Justice Clarence Thomas wrote an opinion in an Utah case ruling that evidence obtained from an unlawful police stop would not be excluded from court because the link between the stop and the evidence’s discovery was “attenuated” by the discovery of an outstanding warrant during the stop.

What the exclusionary rule accomplished was a higher standard of police training and in turn police work. Ironically, the late Justice Antonin Scalia cited “increasing professionalism of police” as a reason for the exclusionary rule’s obsolescence.

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. The exclusionary rule’s contribution to the criminal justice system cannot be overstated.

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

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TCR: How We Can Police the Police

Matthew T. Mangino

The Crime Report

June 8, 2020

In a report on police use of force issued in 2018, the United States Commission on Civil Rights recommended, “Officers should be trained on de-escalation tactics and alternatives to use of force.”

The training should include “strategies to create time, space, and distance, to reduce the likelihood that force will be necessary and should occur in realistic conditions appropriate to the department’s location,” the report said.

But the problem with policing today is not a lack of training or inadequate training, or even the wrong training. It’s more fundamental: what are the boundaries of policing, and how do we hold the police accountable if they go beyond those boundaries?

Lawyers, litigators and the U.S. Supreme Court may hold the key to those questions.

During the first half of the 20th Century, police throughout America have ignored constitutional guarantees against unreasonable arrests and searches and the use of the “third-degree” when questioning suspects, wrote Lewis R. Katz in the Case Western University School of Law Faculty Journal.

Katz explained the “third-degree” using court records of a 1936 Mississippi case.

A black man was accused of killing a white man. A deputy sheriff, accompanied by others, came to the home of the defendant. After he denied the crime, “they seized him, and with the participation of the deputy…hanged him by a rope to the limb of a tree; and having let him down, they hung him again, and when he was let down the second time, and he still protested his innocence, he was tied to a tree and whipped, and still declining to accede to the demands that he confess, he was finally released . . .”

According to Katz, the deputy returned to the home of the defendant a day later and arrested him.

The deputy again severely whipped the defendant, “declaring that he would continue the whipping until he confessed, and the defendant then agreed to confess.”

This type of conduct was commonplace. Local police officers could literally beat a confession out of a suspect. In addition, the police often ignored Fourth Amendment protections from unlawful search and seizure; the Sixth Amendment right to counsel; and, of course, the Fifth Amendment right to remain silent.

Then, in 1961, came Dollree Mapp. She was arrested in Cleveland, Ohio, after the police searched her home without a warrant. She was convicted, and her appeal made its way to the U.S. Supreme Court.

Through Mapp, the High Court created accountability for local police misconduct. The exclusionary rule, having been used in federal courts, would now apply to the states. If the police gathered evidence by violating a suspect’s constitutional rights, that evidence would be excluded from use at trial.

With a single swipe of the pen, the Supreme Court wiped out years of over-zealous police conduct.

Policing and police training improved and the overall conduct of police officers changed. In fact, in 2006, the late Supreme Court Justice Antonin Scalia wrote that the exclusionary rule was responsible for ‘‘wide-ranging reforms in the education, training, and supervision of police officers.’’

He believed the decision in Mapp v. Ohio was so successful that the country no longer needed the exclusionary rule.

The reason for the success of the Exclusionary Rule was simple—accountability.

Once again, the U.S. Supreme Court is in a position to have a profound and dramatic impact on policing by striking down qualified immunity. The Supreme Court established qualified immunity as a judicial doctrine that shields the police and other state officials from liability for misconduct. The Court ruled a state actor would be immune from liability if, at the time of the harm, the conduct “was not clearly established” as a civil rights violation.

This country’s primary federal civil rights statute can be found in Title 42 of the U.S. Code. “Section 1983”—as it is commonly called—provides that any police officer who violates a person’s constitutional rights “shall be liable” to the party injured.

Demonstrating “clearly established” conduct has proven difficult for plaintiffs. For a claimant to prevail in the face of a qualified immunity defense, she would have to show that the harm inflicted was established as a civil rights violation in a prior case with identical facts. It is not unusual for a court to tell a plaintiff that her civil rights were violated but that there is no similar case in point—so you lose.

The Supreme Court is currently considering, for formal review, a number of cases that deal with qualified immunity.

Financial liability for wrongdoing is accountability. This is where litigators and lawyers come in. If the Supreme Court scraps the judicially-created protections for over-the-top, inappropriate and often violent conduct by police, policing will improve.

Over the years, litigation has improved standards in the medical profession. It has held tobacco companies accountable for killing people. It has made automobiles safer. It has protected people from the harms of defective products.

Policing the police is a by-product of the bright light of an open courtroom, zealous litigants, and a citizen jury sifting through the facts of a case and holding, when appropriate, bad actors accountable.

Matthew T. Mangino, a former district attorney in Pennsylvania, is of counsel with Luxenberg, Garbett, Kelly & George P.C. His weekly column on crime and punishment is syndicated by GateHouse Media. He is the author of The Executioner’s Toll, 2010. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

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The Crime Report: Why Can’t We Rein in Police Misconduct? Blame Prohibition

Matthew T. Mangino

The Crime Report

August 31, 2018

Prohibition in America lasted 13 years—until 1933, when President Franklin D. Roosevelt signed a “beer bill” as one of his first acts in office. The Twenty-First Amendment—­the only constitutional amendment ever to reverse an earlier amendment—went into effect by the end of that year.

But the collateral damage of Prohibition still reverberates through the criminal justice system.

Much has been made of the gangland violence that punctuated Prohibition. Mobsters like Al Capone, who made millions during Prohibition, would stop at nothing to corner the bootlegging market.

However, that was only one facet of the violence.

At times, the police were worse than the mob, and the subsequent efforts to curb Prohibition-era police misconduct have also left a lasting impact on the search for accuracy in prosecutions and limits on excessive force by police officers.

That’s the conclusion drawn by Wesley M. Oliver, a professor at Duquesne University School of Law, in his new book, The Prohibition Era and Policing.

His conclusion is especially worth noting as the nation grapples with multiple cases of police misconduct and the failures to hold law enforcement accountable

Oliver quoted the 1931 The Wickersham Report, formally titled “Report on the Enforcement of the Prohibition Laws in the United States,” which blasted law enforcement during the Prohibition era,

Among its key conclusions:

Pressure for lawless enforcement, encouragement of bad methods and agencies of obtaining evidence, and crude methods of investigation and seizures … started a current of adverse opinion. 

Prohibition created “enormous” opportunities for police corruption, Oliver wrote.

While the potential benefit to crooked cops was obvious, over-zealous “honest” officers often took advantage of the zealous enforcement climate created by Prohibition to violate individuals’ privacy, destroy property, or engage in physical violence—all in the name of stamping out alcohol use.

As Oliver points out, police behavior during this era shifted the focus from procedures to ensure accurate criminal trials to preventing police misconduct. The result was the exclusionary rule.

Thirteen days after the Volstead Act made it a federal crime to manufacture or sell alcohol, the U.S. Supreme Court decided Silverthorne Lumbar Co. v. United States. The Court found that the Fourth Amendment prohibits the government from introducing evidence gathered as the result of an unlawful seizure.

The exclusionary rule was not restricted to illegal searches. At the time, police were practitioners of the “third degree”—violence-induced confessions. The term is better known as torture.

Oliver examines the rigidity of a rule that excludes reliable evidence of criminal conduct because of the manner in which it was obtained or, as Justice Cardoza famously said, the result of the watchman’s “blunder.”

By 1939, not only was illegally obtained evidence being excluded but also any evidence discovered as a result of the illegally obtained evidence. The fruit of the poisonous tree, as it became known, was excluded regardless of its reliability.

About the same time, technology began to get in the way of the U.S. Constitution.

As telephones became more and more useful in criminal enterprises, the High Court was forced to consider the privacy rights of individuals. Oliver meticulously maps out a history of the wiretap, highlighting that the Court’s first foray into wiretapping was a failure—a precursor to the modern Court’s struggle with rapidly evolving technology.

In Olmstead v United States, Chief Justice William Howard Taft concluded that the Fourth Amendment only protected tangible things—persons, papers, and effects. Since the police eavesdropped on telephone calls while clinging to a telephone pole outside the house, and not in the house, there was no intrusion and no violation of the Fourth Amendment.

According to Oliver, wiretapping during Prohibition “created such a backlash that communication over wires became more protected than information in sealed envelopes or effects in one’s home.”

So how does Prohibition affect us today? Oliver examines, with clarity and finesse, the Warren Court’s landmark decisions in Mapp v Ohio (exclusionary rule); Terry v Ohio (stop and frisk); and Miranda v Arizona (right to counsel and to be free of interrogation).

Ignoring police misconduct in favor of more reliable evidence of criminal conduct is not an even exchange.

Oliver wrote that “the Supreme Court’s cases are moving toward eliminating the exclusionary rule.”

Certainly Oliver’s examination of the case law would support that conclusion, but ignoring police misconduct in favor of more reliable evidence of criminal conduct is not an even exchange.

As Oliver writes, the late Justice Antonin Scalia suggested in Hudson v Michigan that the exclusionary rule is obsolete because of an “increasing professionalism of police forces, including a new emphasis on police discipline.”

That increase in professionalism is because of the exclusionary rule— not a reason to abolish it.

Oliver’s work is thought-provoking. Accuracy should be the goal of any system of justice, but protecting the public from unlawful police practices—including excessive force—is also a laudable goal.

Matthew T. Mangino, a regular contributor to The Crime Report, served as an elected District Attorney in Pennsylvania and on the state’s Board of Probation and Parole. He is now of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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GateHouse: The 1960s continue to impact on criminal prosecutions

Matthew T. Mangino

GateHouse Media

September 2, 2016

This fall, when the U.S. Supreme Court convenes to hear arguments, the docket will be filled, from top to bottom, with criminal cases. The court will take up, among other criminal issues, double jeopardy, federal bank fraud, insider trading, racial bias among jurors and malicious prosecution.

Next year, when the court is expected to publish its decisions, promises to be a banner year for criminal justice practitioners. If next year is a banner year, then 1960s was the banner decade for criminal justice and the U.S. Supreme Court.

Starting in 1961, the U.S. Supreme Court made a series of decisions regarding the rights of criminal defendants that still reverberate today. Starting with the decision of Mapp v. Ohio, the court issued four decisions that continue to be analyzed, interpreted and adjusted 50 years later.

In Mapp, Dollree Mapp refused to let the police enter her house without a warrant. The police returned several hours later with a document purported to be a warrant — it was not. They entered her home found some illicit material and arrested Mapp. She unsuccessfully challenged the evidence at trial. On appeal, the Supreme Court found in her favor and extended the “exclusionary rule” to state prosecutions.

The exclusionary rule prohibits the police from using evidence illegally obtained. The rule is the primary impetus behind improvements in police training and the general protection of individual constitutional rights.

As recently as this summer, the court was tweaking Mapp. In a case out of Utah, a defendant was stopped along the street and asked to identify himself without a legal basis to do so. It was learned that he had a warrant for a traffic violation and was arrested.

The U.S. Supreme Court refused to throw-out his arrest. The court noted that it has recognized several exceptions to the exclusionary rule, three of which involve the causal relationship between the unconstitutional act and the discovery of evidence. “Evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance.”

In 1963, the court decided Gideon v. Wainwright. The landmark decision held that state criminal courts must provide counsel to defendants in criminal cases without cost if they cannot afford an attorney. Although, most states were already providing free legal counsel to defendants facing a charge that could result in a prison sentence, Florida and a handful of other southern states were not.

Two years later the court decided Miranda v. Arizona and incorporated Gideon into the decision. The decision requires the police to inform a suspect who is in custody that he has the right to remain silent and the right to an attorney.

Although the Miranda warnings are etched in nearly everyone’s consciousness, the decision is still evolving. In 2013, in a case out of Texas, a murder suspect who answered questions for almost an hour was then asked about some incriminating evidence. The suspect stopped talking.

The police made notes of his conduct once he stopped talking. According to the Supreme Court, the suspect “(l)ooked down at the floor, shuffled his feet, bit his bottom lip, cl(e)nched his hands in his lap, (and) began to tighten up.”

That conduct was used at his trial as evidence that he was hiding his guilt. The Supreme Court found that silence is not enough to invoke the right to remain silent.

Finally, in 1968, the Supreme Court decided Terry v. Ohio. The court found that it was not an illegal search and seizure if a police officer with reasonable suspicion — less than probable cause for arrest — stops a suspect on the street, asks her to identify herself and pats her down for a weapon. Terry is the basis for the controversial practice in New York City known as “stop and frisk.”

The 1960s continue to have an impact on the Supreme Court and more importantly on the fundamental rights of those accused of a crime.

— 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 atmattmangino.com and follow him on Twitter at @MatthewTMangino.

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PLW: U.S. Supreme Court Tackles Series of Criminal Controversies

Matthew T. Mangino

The Pennsylvania Law Weekly

July 15, 2016

The momentum for criminal justice reform, which was so promising in Congress early in the year, has fizzled out.

The Sentencing and Reform Act was to update federal mandatory minimum sentences, among other things.

Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, told RealClearPolitics.com, "I don't see how it gets done before" July 15, referencing the day the senators depart from Washington and won't return until after Labor Day. "It's a real big disappointment to me." After Labor Day there is little chance that anything will get done with the election looming.

As a result, this year any criminal justice "reform" comes the old-fashioned way—through the U.S. Supreme Court. This spring, the court released a flurry of criminal justice decisions, somewhat obscured by titillating decisions on abortion, immigration and affirmative action.

The high court did delve into a couple of jury-related questions, a couple Fourth Amendment cases, sentencing and a corruption decision.

This is by no means an exhaustive list of the court's treatment of criminal justice issues, but an examination of a handful of decisions that might be enlightening.

In Foster v. Chatman, 578 U.S. (2016), decided on May 23, the court reversed a capital murder conviction, finding that the Georgia prosecutors' "two peremptory strikes on the basis of race are two more than the Constitution allows."

Timothy Foster was 18 years old when he was arrested for the murder of a 79-year-old widow and former elementary school teacher. Foster is African-American, while the victim was white. Turned in by his girlfriend, Foster admitted to the crime. But there were questions about his limited-intellectual capacity and whether he had an accomplice.

When the case went to trial all of the black members of the jury pool were removed. Foster's trial came only a year after the court's landmark decision in Batson v. Kentucky, 476 U.S. 79 (1986). Batson was intended to eliminate racial bias in jury selection.

The 1986 ruling set up a three-step process for testing complaints about race-based use of peremptory strikes.

First, the accused has to show membership in a specific racial group. Second, prosecutors need to offer nonracial reasons for removing the juror. Third, the judge must decide whether, taking everything into consideration, the defense proved a racial bias.

During jury selection in Foster's case, one black juror was dismissed for cause, and prosecutors eliminated the other four with peremptory challenges, offering a variety of nonracial reasons accepted by the presiding judge.

In 2006, nearly 20 years after his conviction, Foster's lawyers obtained the prosecution team's jury selection notes under the Georgia Open Records Act. The name of each potential black juror was highlighted on four different copies of the jury list and the word "black" was circled next to the race question on questionnaires for the black prospective jurors. Three of the prospective black jurors were identified in notes as "B#1," "B#2," and "B#3."

The high court granted Foster a new trial.

In Lynch v. Arizona, 578 U.S. ___ (2016), decided May 31, another capital case, the state put the defendant's future dangerousness at issue and acknowledged that his only alternative sentence to death was life imprisonment without parole. The Arizona high court concluded that the defendant had no right to inform the jury of his parole ineligibility. The U.S. Supreme Court disagreed.

In Simmons v. South Carolina, 512 U. S. 154 (1994), a capital defendant's future dangerousness was at issue, and the only sentencing alternative to death available to the jury was life imprisonment without possibility of parole. The court ruled that the due process clause entitles the defendant to inform the jury of his parole ineligibility, either by a jury instruction or in arguments by counsel.

A Pennsylvania case was prominently among the high court's decisions this spring. In Williams v. Pennsylvania, 579 U.S. ___ (2016), decided June 9, the court held that due process required that Pennsylvania Supreme Court Chief Justice Ronald Castille recuse himself from the capital defendant's post-conviction challenge where Castille had been the district attorney who gave his official approval to seek the death penalty in the case.

The court stated: "Under the due process clause there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant's case." It went on to hold that the justice's authorization to seek the death penalty against the defendant constituted significant, personal involvement in a critical trial decision.

In Utah v. Strieff, 579 U.S. ___ (2016), decided June 20, the defendant was stopped along the street without reasonable suspicion. The defendant complied and the officer relayed the defendant's information to a police dispatcher, who reported that the defendant had an outstanding arrest warrant for a traffic violation. The officer then arrested the defendant pursuant to the warrant. When a search incident to arrest revealed methamphetamine and drug paraphernalia, the defendant was charged and convicted.

The Utah Supreme Court reversed and held that the evidence was inadmissible.

The U.S. Supreme Court reversed. The court began by noting that it has recognized several exceptions to the exclusionary rule, three of which involve the causal relationship between the unconstitutional act and the discovery of evidence. "Evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained."

The court also took up an alcohol-testing incident to an arrest for driving under the influence. In Birchfield v. North Dakota, 579 U.S. ___ (2016), decided June 23, the court held that while a warrantless breath test of a motorist lawfully arrested for drunk driving is permissible as a search incident to arrest, a warrantless blood draw is not. The court concluded: "Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving."

The U.S. Supreme Court overturned the political corruption conviction of former Virginia Gov. Robert F. McDonnell.

McDonnell received more than $175,000 in loans and gifts—including a Rolex watch, vacations and partial payment of his daughter's wedding reception from a Richmond businessman.

The gifts did not violate Virginia law, but federal prosecutors alleged that in exchange for the gifts, McDonnell engaged in official acts to arrange meetings for the businessman and hosted a reception at the governor's mansion for a new product launch.

Although Chief Justice John G. Roberts Jr. tried to distance himself from the conduct of McDonnell, his concern was clear—the term "official acts" could cover almost any action a public official takes.

In McDonnell v. United States, 578 U.S. __ (2016), decided June 27, Roberts wrote, "Conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time." He continued, "The basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns—whether it is the union official worried about a plant closing or the homeowners who wonder why it took five days to restore power to their neighborhood after a storm."

In Betterman v. Montana, 578 U.S. __ (2016), decided May 19, the Sixth Amendment's speedy trial guarantee does not apply to the sentencing phase of a criminal prosecution. The defendant argued that the 14-month gap between conviction and sentencing violated his speedy trial right. For inordinate delay in sentencing, although the speedy trial clause does not govern, a defendant may have other recourse, including, in appropriate circumstances, tailored relief under the due process clauses of the Fifth and Fourteenth amendments.

Finally, for those foolish enough to think that reform could somehow be spurred by the U.S. Supreme Court there is Taylor v. United States, 578 U.S. __ (2016), decided June 20. Instead of limiting the federal government's reach in local criminal matters, the court expanded the reach.

As summarized by Scotusblog.com, Taylor holds that, "Because the Hobbs Act criminalizes robberies and attempted robberies that affect any commerce 'over which the U.S. has jurisdiction,' the prosecution in a Hobbs Act robbery case satisfies the act's commerce element if it shows that the defendant robbed or attempted to rob a drug dealer of drugs or drug proceeds."

So much for reform, prosecutors will be further clogging federal prisons with local thugs who prey on local drug dealers. 

Special to the Law Weekly Matthew T. Mangino is of counsel with Luxenberg Garbett Kelly & George. His book "The Executioner's Toll," 2010, was released by McFarland Publishing.

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 mattmangino.com and follow him on Twitter at @MatthewTMangino.

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Supreme Court takes on exclusionary rule on first day without Justice Scalia

In Utah v. Strieff the Supreme Court is tasked with determining whether the exclusionary rule applies to an unlawful stop that leads to a warrant check and search incident to arrest. In 2006 Salt Lake City police received a tip for suspicious drug activity occurring at a house, according Jurist.

The police went to the house and saw Edward Strieff leaving the house to go to a convenience store. Upon leaving the house, officers stopped Strieff and asked for identification. Upon running Shrieff's information, the police found an outstanding warrant for Strieff's arrest and arrested him outside the house. The officer then conducted a search incident to arrest and found methamphetamine and drug paraphernalia on Strieff's person.

The Utah Supreme Court ruled that the drug evidence could not be used against Strieff because the initial police stop was illegal. That is, it was not supported by reasonable, individual suspicion against Strieff — regardless of the pre-existing warrant.

Evidence the police discover as a result of violating the Fourth Amendment is considered “fruit of the poisonous tree” and is suppressed under what is known as the exclusionary rule. This is a sensible way to deter the police from breaking the law to get evidence they want. But the court has created several exceptions to this rule, such as in cases where the evidence discovered was a result of a search that was based on a clerical error.

According to the New York Times, during the argument before the Supreme Court, lawyers for Utah argued that the officer’s stop of Strieff was a reasonable, good-faith mistake and that suppressing the evidence would harm society far more than it would deter other officers from making similar mistakes.

But as Justice Sonia Sotomayor pointed out during oral argument, this approach would give far too much latitude to law enforcement: “What stops us from becoming a police state and just having the police stand on the corner down here and stop every person, ask them for identification, put it through, and if a warrant comes up, searching them?”

Justice Elena Kagan added that the threat of this behavior is especially serious in lower-income communities where a majority of residents have outstanding warrants for minor infractions. “If you’re policing a community where there is some significant percentage of people who have arrest warrants out on them, it really does increase your incentive to make that stop,” she said.

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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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